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TMI Blog2006 (7) TMI 613X X X X Extracts X X X X X X X X Extracts X X X X ..... Taxation Tribunal Act, 1987 was admitted on January 24, 2005. At the time of admission it was directed that the issue of attachment of bank account would be heard on a subsequent date fixed for the purpose. On February 7, 2005 this Tribunal was informed that the bank account was attached by an order of the Additional Chief Metropolitan Magistrate and this Tribunal could not direct release of the account from attachment. As question of jurisdiction was raised, this Tribunal by order dated February 7, 2005 granted leave to the petitioner to add Bureau as a respondent. By order dated February 23, 2005 Bureau was added as a respondent upon application filed by the petitioner. In March, 2006 the petitioner filed an application for further interim order directing the respondent not to arrest the petitioner without making assessment of tax and raising demand of assessed tax. In the said application it has been alleged that police wing of the Bureau was harassing the petitioner's wife by raiding the residential house at odd hours in the night. In course of hearing of the said application this Tribunal was informed that on the basis of FIR lodged warrant of arrest has alre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est Bengal Taxation Tribunal Act, 1987 (in short, the Tribunal Act, 1987 ) enacted by the State Legislature in exercise of the authority conferred by article 323B of the Constitution of India. Tribunal derives its jurisdiction, power or authority from the Tribunal Act, 1987. Sections 6, 7 and 8 of the said Act of 1987 deal with such jurisdiction. Section 7 of the Tribunal Act confers on the Tribunal jurisdiction to determine question or questions referred to it in the manner provided in the said Act. Reference jurisdiction is not relevant for the present purpose. Relevant portions of sections 6 and 8 are reproduced below: 6. Jurisdiction, powers and authority of the Tribunal. (1) Save as otherwise expressly provided in this Act, the Tribunal shall exercise, in respect of a State Act, with effect from the date on which such State Act is specified in the Schedule referred to in section 6, all the jurisdiction, powers and authority exercisable immediately before that day by all courts including the High Court but excluding the Supreme Court of India for adjudication or trial of disputes or complaints or offences with respect to all matters of levy, assessment, collection and e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to in sub-section (3). (2) The Bureau shall consist of an Additional Commissioner (hereinafter referred to as, the Special Officer) and such number of other persons appointed under sub-section (1) of section 3 to assist the Commissioner as the State Government may deem fit to appoint. (3) The Bureau may, on information or of its own motion, or when the State Government or the Commissioner so directs, carry out investigation or hold enquiry into any case of alleged or suspected evasion of tax as well as malpractices connected therewith and send a report in respect thereof to the Commissioner. (4) The Bureau may, for the purpose of holding investigation or enquiry under sub-section (3), exercise all the powers under section 65, section 66, section 67, section 69, section 70, section 71, section 72 and section 73: Provided that the Commissioner may, on receipt of a report under sub-section (3), require the Bureau to transfer to him any accounts, registers or documents relating to the said report seized by the Bureau and, on such transfer, such accounts, registers or documents shall be retained by him subject to the provisions of section 66. (5) The Bureau may, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... courts not inferior to a Metropolitan Magistrate or a Judicial Magistrate. Act of 1994 has created different official authorities and agencies for implementing the provisions of the Act. Their functions can be broadly divided into three classes: (i) Levy, assessment, collection of tax and enforcement of the provisions relating to and/or connected with such levy, collection, assessment of tax. (ii) Detection of any offence created under the Act, 1994 and taking appropriate legal steps for prosecution of the offender dealer in the competent court under the Cr. P. C. (iii) If commission of an offence under the Indian Penal Code comes to light during any enquiry or investigation under the provisions of the Act of 1994, entrusting investigation of the same to the general police in accordance with the provisions of the Cr. P. C. by lodging FIR in the appropriate police station. Once FIR is lodged with the police in a police station reporting commission of an offence either under the Sales Tax Act or under the Indian Penal Code, all further actions relating to such alleged offence move from the domain of Sales Tax Act to the realm of Criminal Procedure Code and only authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act of 1994 or under any other specified State Tax Act can claim immunity from judicial scrutiny of his/her acts of commission or omission. As regards offences created by the Act of 1994 this Tribunal has jurisdiction, power and authority excepting that this Tribunal has no jurisdiction to try such offence inasmuch as it will be tried, if necessary, by the prescribed court in accordance with the provisions of the Cr. P. C. Up to the stage prior to commencement of trial, this Tribunal has jurisdiction to interfere but it may not or should not interfere if any competent criminal court is in seisin of the case and has passed orders unless there is grave error of law and manifest injustice. Trial of criminal cases commences at different stages depending upon the nature of the proceedings a summons case or a warrant case or a sessions case. But in any such proceedings trial never commences with lodging of FIR. FIR is just an information on the basis of which the police initiates investigation or enquiry into the alleged offence. After FIR is lodged general police empowered and authorised by the Cr.P.C. or invested with the powers under the Cr. P. C. will proceed with the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the principles of law applicable in the facts and circumstances of the case. Out of the aforementioned decisions Calcutta High Court in Commissioner of Commercial Taxes, West Bengal v. West Bengal Taxation Tribunal [2000] 120 STC 453 dealt with the jurisdiction of this Tribunal in respect of criminal cases. In the said case 36,000 kgs. of Amulya milk were seized and penalty proceeding was initiated. Upon an application challenging such seizure Tribunal on December 8, 1999 directed release of the seized goods and documents within 24 hours and disposed of the application on the same day. On December 9, 1999 the Commercial Tax Officer, Chichira checkpost lodged a first information report. Same goods were again seized and the drivers of the vehicles were arrested. Transporters drew the attention of this Tribunal to such seizure and arrest. Tribunal took exception, viewed the criminal case as sham criminal proceeding to frustrate the order of the Tribunal to release the goods and passed a fresh order to release the goods immediately. Against the said order Revenue moved the division Bench of the High Court. It was contended on behalf of the Revenue that the Tribunal had no jur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Calcutta quashed the FIR registered in a police station on the ground that the person who forwarded the complaint to the police had no competence or authority to do so. The Supreme Court held therein that the High Court should not have quashed the FIR. This Tribunal in Deepak Kumar Mandhyam v. State of West Bengal reported in [2002] 40 STA 48, refused to entertain an application seeking quashing of FIR on the ground that propriety or legality of FIR registered under the Criminal Procedure Code could not be quashed by the Tribunal as it required jurisdiction under the Criminal Procedure Code to do so. Tribunal was not fully correct. Chargesheet under Cr.P.C. may also be quashed in exercise of the power under article 226 of the Constitution of India in appropriate cases (vide Supreme Court's decision in State of Haryana v. Bhajanlal AIR 1992 SC 604). If the FIR and the charges are for any offence under any State Act for tax only within the purview of the Tribunal, legally this Tribunal having all the powers of the High Court has the jurisdiction to entertain such application but this Tribunal should not ordinarily entertain such application and should ask the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dinate assisting staff and they cannot independently exercise the powers exercisable by the Bureau. It appears that at different places the police officers attached to the Bureau have been described and/or mentioned as Police Wing of the Bureau. The said term and description is misnomer and incorrect and nothing but a casual mode of describing the police personnel attached to the Bureau as staff. As already mentioned these police officers are merely sub-ordinate officers and do not form part of the Bureau. Such position has been made clear in an unreported judgment of the Calcutta High Court in Civil Rule No. 10627(W) of 1975 (Biswanath Jhunjhunwala v. State of West Bengal) delivered on December 15, 1976 and cited by Mr. Pranab Dutta, learned Senior Advocate for the respondent in the present case. Aforesaid case related to the provision of the Bengal Finance (Sales Tax) Act, 1941. Section 19A of the 1941 Act was pari materia with section 7 of the Act, 1994. In the said case before the High Court the petitioner therein contended that there was no scope for attaching any police officer to the Bureau under section 19A of the Act of 1941. The High Court agreed that no police pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation or enquiry to prevent or detect evasion of tax or into any suspected malpractice such investigation is to be conducted in accordance with applicable provisions of the 1994 Act. As soon as police officers are attached to the Bureau as subordinate staff they cease to be members of the general police exercising powers under the Cr.P.C. They cannot exercise any power under the Criminal Procedure Code or under any Police Act so long as they act as subordinate staff of the Bureau. It is an elementary principle of law that subordinate staff of a statutory authority cannot have any power or authority which the authority does not possess. The respondents themselves have admitted that Bureau has not been made a police station and as such Bureau cannot take cognizance of an offence or register first information report. If the Bureau thinks that any dealer is to be prosecuted for an alleged or suspected offence under the Sales Tax Act, it will have to lodge a FIR with the police in a police station or file a complaint before the competent Magistrate after obtaining previous sanction of the Commissioner. In case Bureau gets hold of any material to suspect an offence under the India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner or Deputy Superintendent of Police when he is reposted in the police department and attached to a police station but he cannot exercise powers of the police officer while acting as a subordinate staff for the purpose of assisting the Bureau in conducting investigation into suspected cases of evasion of tax or any malpractice connected therewith. Sub-section (7) of section 7 has provided for distribution of the work of the Bureau. The Special Officer has been authorised to assign different functions of the Bureau only to officers constituting the Bureau under subsection (2) and not to any other person or any subordinate officer or staff of the Bureau. In RN-18 of 2005, respondents have placed before us a copy of the letter being Memo. No. 2240(HWR)-04-05 dated December 29, 2004 written by the Assistant Commissioner of Commercial Taxes, Howrah Range to the so-called Deputy Superintendent of Police, Bureau of Investigation. The Assistant Commissioner has described his letter as FIR against Pranab Kumar Saha, the petitioner in RN-18 of 2005. In the said letter Assistant Commissioner reported that the dealer had submitted false returns, did not disclose all his sales, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stigation, Government of West Bengal and seeks to suggest as if the Bureau is an independent organisation of the Government of West Bengal although it is a statutory organisation created under the Act of 1994 as part of the Commercial Taxes Directorate, State of West Bengal. We fail to comprehend any authority of law under which the Deputy Superintendent of Police attached to the Bureau could appoint another subordinate officer of the Bureau to act as the Investigation Officer into criminal offences after registration of FIR with the regular police. It has been submitted that the State Government has permitted the Bureau to function with autonomy. If there is autonomy it is available to the Bureau and grant of such autonomy, if any, does not mean that the assisting personnel attached to the Bureau can function independent of the Bureau. Moreover such functional autonomy, if any, does not and cannot confer on the Bureau any power, authority or jurisdiction other than those conferred by the Act of 1994. We have already explained and again reiterate that after the Bureau lodges a FIR with a police station in respect of any offence either under the Sales Tax Act or under the Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1994 and all their actions, inactions, decisions for such purpose are subject to judicial scrutiny of this Tribunal if approached by any aggrieved or affected person. (6) The police officers attached with or deputed to the Bureau do not form part of the Bureau and they are only supporting staff working in the office of the Bureau to assist the Bureau in discharging its functions. They cannot act independently and they must obtain necessary permission, direction or sanction of the Bureau before taking any action or decision. (7) Once attached to the Bureau as its staff these police officers cannot use their police powers, if any. They can use such power only after they go back to their parent police department. (8) Bureau of Investigation and its supporting staff can exercise only those powers conferred on the Bureau under the provisions of the statute (Act of 1994) constituting the Bureau. In RN-18 of 2005 FIR has already been lodged and registered. The FIR contains allegations of offence under the Act of 1994 as well as those under the Indian Penal Code. The petitioner therein has failed to obtain anticipatory bail up to the High Court. We have already held that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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