CHANDULAL HARJILAL PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This application is filed under Sec. 438 of the Code of Criminal Procedure, 1973 praying for an order in the nature of anticipatory bail in connection with an offence registered as C.R.No.11189004210002 of 2021 with 'B' Division Police Station, Morbi City, Morbi for the offence punishable under Ss. 406, 409 and 420 of the Indian Penal Code as also under Ss. 85(1)(d) and 85(1)(g) of the Gujarat Value Added Tax Act, 2003 (hereinafter referred to as "the Act, 2003").

(2.) Heard Mr. Nirupam Nanavaty, senior advocate, learned counsel assisted by Mr. Yash Nanavaty, learned advocate for the applicant. According to his submission, the offence alleged under Ss. 85(1)(d) and 85(1)(g) of "the Act, 2003" is not made out as applicant being Director of a Company cannot be said to have defaulted in payment of assessed tax on filing of self assessed returns and on even assessment made by the authority when their appeal is already pending before the Appellate Forum. He has further submitted that considering sub-sec. (g) of Sec. 85(1) of "the Act, 2003", the applicant cannot be said to have willfully attempted to evade tax leviable in this case as against the order of assessment of tax by the authority when there is an appeal still pending before the Appellate Forum. He has further submitted that so far as invoking provisions of IPC into this is also out of place. He has further, drawing attention of the Court to Ss. 87 and 88 of "the Act, 2003", submitted that without invoking provisions of the Penal Code, the Officer concerned could not have registered an FIR, may be he was entitled to investigate the offence as offence under "the Act, 2003" is made cognizable.

(3.) As against that, Mr. Mitesh Amin, senior advocate, learned Public Prosecutor has submitted that as such by not filing true and correct returns under "the Act, 2003" they have deprived the State of huge amount by way of Value Added Tax and they misappropriated the same to their own use and therefore, they have not only prosecuted for the offence under "the Act, 2003" but also under the provisions of the IPC . He has further submitted that as such other Directors have been enlarged on anticipatory bail and on the ground of parity this application may be considered, but independently it is not required to be granted.