GOVERNMENT OF BANGLADESH Vs. IQBAL HASAN MAHMOOD TUKU

JUDGEMENT

(1.) This appeal by leave by the respondent arises out of the judgment and order dated 5-12-2007 passed by a Division Bench of the High Court Division in Writ Petition No, 7451 of 2007 making the Rule absolute and thereby declaring the entire proceedings in Special Case No. 6 of 2007 arising out of Complaint Case No, 33 of 2007 started against the respondent under sections 165 and 166 of the Income Tax Ordinance, 1984 without lawful authority and of no legal effect and also quashing the same for the ends of justice,

(2.) The respondent filed the aforesaid writ petition stating that he was a regular Tax payer since 1980-81. The National Board of Revenue (NBR) by its order dated 29-9-2003 included the respondent as Tax payer under Large Tax Payers Unit (LTU), Dhaka by virtue of his being a Director of Apex Weaving and Finishing Mills Ltd and since then he has been paying his tax under LTU. As a regular tax-payer the respondent had paid a total amount of Taka 46,74,99/- as income tax since tax year 1980-81 to 2006-2007, After the emergency was proclaimed in the country the respondent was arrested on 4-2-2007 by the law enforcing agency and subsequently detained in the Chittagong Central Jail by an order of detention dated 5-2-2007.

(3.) While he was in jail custody pursuant to the aforesaid order of detention, the Secretary of the Anti-Corruption Commission issued a notice under section 26 of the Anti-Corruption Commission Act, 2004 directing him to submit his and his familys wealth statements within 72 hours. Being constrained and finding no other alternative the respondent instructed his only son Mr. Abed Hasan Mahmood through jail authority to submit his wealth statements as well as wealth statements for his family to the Anti-Corruption Commission. Thereafter, the respondent No. 6, Deputy Commissioner of Taxes, by letter dated 27-6-2007 requested the respondent No. 5 to approve the enclosed draft complaint and also to obtain necessary sanction from the National Board of Revenue (NBR) for filing a criminal case against the respondent under sections 165 and 166 of the Income Tax Ordinance, 1984 for making false statement in his income tax returns and other documents furnished in connection thereto and also for concealing incomes. The respondent No. 5, Commissioner of Taxes, by a letter dated 28-6-2007 requested for necessary sanction by the NBR. The NBR thereupon on the same date by a Memo dated 28-6-2007 informed the respondent No, 5 of the necessary sanction accorded by it calling upon him to arrange for filing the petition of complaint against the respondent. The respondent No. 6, thereafter, filed the petition of complaint on 4-7-2007 against the respondent in the Court of the Senior Special Judge, Dhaka under sections 165 and 166 of the Income Tax Ordinance, 1984 read with Rule 15 of the Emergency Power Rules, 2007 alleging that the respondent had committed offence under sections 165 and 166 by making false statements and concealing various incomes with a view to evading tax in his tax returns for the tax years 2000-2001 to 2006-2007. Consequently, the Senior Special Judge, Dhaka on the same date took cognisance upon the complaint filed under sections 165 and 166 of the Income Tax Ordinance read with rule 15 of the Emergency Power Rules and thereupon Metropolitan Special Case No, 33 of 2007 was registered (arising out of Complaint Petition No. 33 of 2007) and thereafter, on 10-7-2007 transferred the said case to the Special Court No. 5, Sher-e-Bangla Nagar Parliament Building, Dhaka for trial and there the case was renumbered and registered as Special Case Nov6 of 2007, It is also stated that the aforesaid special case was not competent in the absence of any prior notice under section 93(3) of the Income Tax Ordinance issued on the respondent.