SUNITA JAIN Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THE two petitioners pray for quashing of a proceeding being Siliguri PS Case No. 73 of 2006 dated 17. 03. 2006 under section 88 (5)/88 (C) and 88 (7) of the West Bengal Sales Tax Act, 1994 read with section 10 (e) of the Central Sales Tax Act 1956 and under sections 409/ 468/471/420 and 120b of the IPC corresponding to G. R. Case No. 222 of 2006 pending before the learned Additional Chief Judicial Magistrate, Siliguri.

(2.) ASSISTANT Commissioner, Commercial Taxes, Siliguri charge, lodged and FIR with the OC, Siliguri PS being Siliguri PS FIR No. 73 of 2006 dated 17. 03. 2006 against the present two petitioners alleging the following facts: susmita Jain, the petitioner No. 1 wife of the petitioner No. 2 had been carrying on business under the name and style of M/s. Jain Sons and Bros, at Siliguri and submitted a return for the period from 01. 04. 2001 to 31. 03. 2002 under the Central Sales Tax Act 1956 and claimed inter-State sale of tea under section Tax Act 1956 and claimed inter-state sale of tea under section 8 (l) (b) of the said Central Sales Tax Act 1956, to the tune of Rs. 2,42,89,389. 05p and produced some form 'c' under that Act. Fifteen such forms issued by M/s. Neha Enterprises holding R. C. No. 425001/c/1261 were fake and fabricated as the issuing dealer and R. C. No. both were found to be bogus as per report received. Thus, Smt. S. Jain willfully produced incorrect accounts, registers and documents and furnished incorrect information and suppressed material information to defeat the interest of the State revenue by evading huge quantum of tax payable by her. The fake 'c' forms covered a turnover of Rs. 60,87,064. 79p and the act of Smt. S. Jain resulted in loss of State revenue to the tune of Rs. 4,89,965. 18p during the financial year 01. 04. 2001 to 31. 03. 2002. It was further noticed that for the assessment period ending with 31. 03. 2001 she also produced 'c' forms covering transactions of Rs. 10,61,295. 11p resulting loss of Government revenue to the extent of Rs. 63,677. 11p. 'c' forms were printed on papers which were different from the papers 'c' forms commonly used by Sales Tax authorities and such 'c' forms have no water marks. Further 81 'd' forms in connection with the assessment period ending with 31-03-1997 were found to possess similar physical characteristics. Thus Smt. S. Jain committed offence under section 88 (5)/88 (6) and 88 (7) of the West Bengal Sales Tax act, 1994 read with sections 9 (2) and 9 (2a) fo the Central Sales Tax Act, 1956 apart from commission of offences under the provisions of the IPC. When the offence was allegedly committed the petitioner No. 2, the husband of Smt. S. Jain was responsible to the dealer for the conduct of the business of the dealer and hence the said Shri Kamal Jain, as well as, the dealer are deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly under section 89 of the West Bengal Sales Tax act, 1994. This complaint was addressed to Special I. G. of Police, Bureau of investigation, Directorate of Commercial Taxes of the Government of West bengal and the office of the I. G. of Police in the Bureau of Investigation forwarded the same to the O. C. Siliguri PS which drew up a formal FIR.

(3.) IT has been contended in the revisional application that the question of wrong information and evasion of tax does not arise in view of the fact that all along the petitioner No. 1 had been submitting returns and paying taxes as per the said returns, as well as, as per the assessment of subsequent event for the respective years, that returns were accepted after assessment for the relevant periods and as such the allegations made in the FIR regarding evasion of tax does not arise without making any revision of assessment by the O. P. No. 2 (Assistant Commissioner, Commercial Taxes, Siliguri), that the returns for the period of 4 Qrs. ending with March, 1997 was submitted along with payment of tax long back after assessment was made in the year 1999 and as such the Sales Tax Authority cannot reopen the case for the period of 4 Qrs. ending with March, 1997 which is barred by limitation and in view thereof the entire FIR, as well as, the proceeding being Siliguri p. S. Case No. 73 of 2006 is liable to be quashed, that without affording opportunity to the petitioner No. 1 to explain alleged evasion of tax and without revising the assessment the lodgement of complaint was bad in law, that without giving notice for revising the assessment of tax for the period of 4 Qrs. ending with March, 2002 and 4 Qrs. ending with March, 2001 and after the limited period the reopening of the case for the period of 4 Qrs. ending with March, 97 the complaint lodged by the O. P. No. 2 before the Bureau of Investigation was bad in law, that the petitioner No. 1 already paid Rs. 1 lac as an instalment out of 50 per cent of the claimed amount of rs. 5,50,108. 50p, but payment of such amount was not called for without prior revising the assessment of the Sales Tax for the relevant period as alleged in the FIR and under all such circumstances the prosecution against the petitioners was not maintainable and is accordingly liable to be quashed.