Ashok Sukhija v. State Of Haryana

    

 

   


   

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"Subject:

Regarding registration of FIR against Sh. Jitender Malik S/o Sh Jai Bhagwan R/o H. No 170, New Housing Board Barnala Road Sirsa, Prop M/s Jitender Trading Co., Near Gate No 3 Janta Bhawan Road Sirsa TIN 06932918998 Memo On the subject cited above, it is informed that firm in the name of M/s Jitender Trading Co., Sirsa ΤΙΝ 06932918998 is found involved in claiming bogus refund on account of input tax credit. During the assessment period 12, this dealer has fraudulently obtained refund of Rs. 1475208/

by using false and fabricated documents which includes sale invoices of cigarettes regarding inter state sale to Rajasthan, VAT D 3 forms showing sale of Cigarettes and C forms bearing No. R/C/2009/4434431. These refunds were obtained by using the above mentioned C forms procured from the dealers of Rajasthan who used to deal in the trading of tax free commodity i.e. khal, binola etc, on account of showing interstate sale of Cigarettes against said C forms.

On perusal of the record, it has been found that actually dealer has used forged and false documents of sale (as mentioned above) and without making any actual movement of goods during the course of inter state sale, dealer has obtained the refund to the tune of Rs. 1475208/ , This dealer has claimed input tax credit @21% on account of purchases of Cigarettes and further shown disposal of these goods @2% in the course of interstate sale against C forms. It has also been observed by the Special Team (Refund) in his report bearing No 45 dated 4.11.2015 that no taxable goods were sold in the course of inter state sale by M/s Jitender Trading Co.

, Sirsa, rather, in Rajasthan, against these C forms, tax free goods (khal/Binola) have been shown accounted for which shows that benefit of input tax credit has been claimed and obtained by M/s Jitender Trading Co., Sirsa despite the fact that no tax has been paid at any stage by the dealer, Moreover, claim of sale at concessional rate of tax against C forms has been claimed wrongly. In this way, by claiming false ITC and claiming sales at concessional rate of tax against the C forms by submitting false and fabricated documents, have caused revenue loss amounting to Rs. 3034695/ to the State Exchequer as per revision order No. 05D dated 11.11.2014. It is accordingly, requested to register FIR against Sh. Jitender Malik S/a Sh. Jai Bhagwan R/o H.M 170, New Housing Board Barnala Road Sirsa, Prop M/s Jitender Trading Co.

, Near Gate No 3 Janta Bhawan Road Sirsa TIN 06932918998 as per relevant provisions/sections of IPC and any other penal law if applicable, for investigation in the matter as per law. s/d chap Singh Excise Taxation Officer Ward no. 5 Sirsa.

1. The Excise Taxation Commissioner, Haryana Panchkula 2. The Dy Excise Taxation Commissioner (ST) Sirsa s/d chap Singh Excise Taxation Officer Ward no. 5 Sirsa."

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 "5. On the specific query being asked to Counsel representing the State as to what was the role of the petitioner in issuing refund to the accused firm as unearthed in the investigation, he on instructions from the Investigating Officer submits that the petitioner used to charge 2% to 3% commission on refund.

6. Having heard rival contention of the parties, this Court finds that the allegation in the FIR is w.r.t. the assessee having claimed refund wrongly by submitting forged and false documents of sale. Thus the role of the petitioner primarily relates to error in judgment. There is no such allegation that the petitioner acted in cahoots with the assessee to award refund illegally.

7. It is not disputed by State Counsel that the Challan already stands presented. Investigation is complete and as on date the evidence w.r.t. meeting of minds between the petitioner and the main accused remains amiss.

8. The petitioner is stated to be 67 years old Senior Citizen earning pension from the State. It is also not disputed that the petitioner served State with clean record and has no criminal antecedents.

9. In view of above this Court finds that there is no reason to prolong custody of the petitioner as a punitive measure. Resultantly, the present petition is allowed. The petitioner is ordered to be released on bail on his furnishing bail bonds/surety bonds to the satisfaction of the Trial Court/Duty Magistrate concerned."

 
 
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"4. On behalf of petitioner Ashok Sukhija, it is contended by ld.

counsel that petitioner had joined his services at Sirsa on 02.07.2013, whereas the case in hand pertains to refund for the year 2011

12. It is Sh. D.P. Beniwal, the then Excise and Taxation Officer, who was responsible for conducting the physical verification of the firm, examine the returns and verify documents of the firm. It is said D.P. Beniwal, who had conducted the necessary verification and that petitioner had simply passed the final assessment order on the basis of assessment done and the refund order issued by D.P. Beniwal, and in this way, petitioner was not concerned in any way with the allegations made in the FIR.



5. (i) Apart from above, ld. counsel for both the petitioners, have drawn attention towards the fact that loss to the State exchequer to the tune of Rs.29,29,359/ had come to the notice of the respondent/State only on 11.11.2014, when the revision order was passed, as is evident from the contents of the FIR itself. It is more than 5 years from the date of that final order in the revision, that letter was sent to the Superintendent of Police, Sirsa to register the case and another approximately about one year, the FIR has been lodged on 24.10.2020 and in this way, there is an unexplained delay of more than 8 years from the date of alleged commission of the offence. (ii) Ld. counsels further contend that entire case is dependent upon documentary evidence; that investigation already stands concluded and there is no prospect of any of the petitioners absconding from justice and so, they be allowed regular bail, inasmuch as co accused Gopi Chand Chaudhary has already been allowed bail by this Court.

6. Opposing the bail petitions, ld. State counsel contends that petitioners committed economic offences causing loss to the State exchequer to the tune of more than Rs.29 lakhs; that though the allegations make out violation of the provisions of the Act, but at the same time, there is nothing which precluded the police to investigate a crime under the provisions of IPC, in case allegations leveled in the FIR make out the commission of offences under the IPC. Ld. State counsel contends that fraud and fabrication of documents on the part of petitioners is writ large, as they are involved in evading of VAT by claiming input tax credit on the basis of forged documents. Prayer is made for rejecting both the petitions.

7. I have considered submissions of both the sides and have appraised the record carefully.

8. A Co ordinate Bench of this Court in
  ! decided on 16.05.2023 titled

"#$ Vs. %&examined the provisions of Sections 57 & 58 of the Punjab Value Added Tax Act, 2005 ['for short 'the 2005 Act'], providing for penalty for failure to issue invoices and use of false invoices and observed that allegations of the FIR are squarely covered under the provisions of Sections 57 & 58 of the 2005 Act. It was further observed that the 2005 Act is a complete Code in itself and there is no provision provided in the 2005 Act for registration of the FIR. It was further observed that the 2005 Act only provided for imposition of penalty in case there is any contravention of its provisions and since the 2005 Act is a special law, principle of generalia specialibus non derogant would apply, meaning

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thereby it would operate in exclusion to the general law i.e., the IPC. While holding so, the Court relied upon % '()  %&*
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$(6, holding that provisions of the Act are sufficient and equipped to deal with the matter, where an attempt is made to evade the Tax and the registration of FIR in such like matters is totally an abuse of the process of law.

9. However, this Court notices that in the absence of factual matrix in

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63 it is not possible to comment as to whether in those cases also, there were allegations regarding bogus refund of input tax credit based on false and fabricated documents. In these circumstances, it will be a debatable issue as to whether the provisions of IPC shall be applicable to the present case or not.

10. At the same time, it is not disputed even by the ld. State counsel that FIR pertains to the bogus refund of input tax credit in respect of Assessment Year 2011 12, in which the alleged loss of Rs.29,29,359/

to the State exchequer was finalized at least on 11.11.2014 in revision order, as is mentioned in the FIR itself. No explanation is given in the FIR about the delay of more than 5 years so as to write a letter to the Superintendent of Police, Sirsa on 11.12.2019 to take action against the culprits and then another approximately one year for getting the FIR registered on 24.10.2020.

11. Apart from this unexplained huge delay, the case is mostly based upon documentary evidence. Investigation is already complete. Challan already stands presented before the Court concerned. Co

accused Gopi Chand Chaudhary, the then Excise and Taxation Commissioner, has already been allowed bail by a Coordinate Bench of this Court vide order dated 09.10.2023 passed in CRM M 49998

2023. As per the status report, even the charges are yet to be framed. Mahesh Kumar @ Mahesh Bansal (petitioner in CRM M 56316 2023) is in custody ever since 01.05.2023 i.e., for the last more than 7 months; whereas Ashok Sukhija (petitioner in CRM M 52902 2023) is in custody since 31.05.2023 i.e., for the last more than 6 months. Trial may take time to conclude."

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has been filed. The same is taken on record.





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