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TMI Blog2024 (4) TMI 815X X X X Extracts X X X X X X X X Extracts X X X X ..... e applicant was required to pay the tax on the goods sold by him. But the applicant had not deposited the tax with the Government. He was repeatedly sent the letters in that behalf, but he did not respond and he did not pay the tax. The F.I.R. mentions that, from the year 2009 to 2017 the total tax which was due and payable from him was to the tune of Rs. 1,47,56,486/-. The authorities had freezed various bank accounts of the applicant. The informant had gone to the address of the applicant, but he was not found there. He was issued a show-cause notice dated 13.10.2022, but he did not make the payment of the tax. Hence, he committed the offence punishable U/s. 74(2) of the MVAT and under sections 420 and 406 of the I.P.C. On this basis the F.I.R. was lodged. 4. Shri. Saraogi, learned counsel for the applicant made the following submissions. There is a distinction between the MVAT and the GST. Under the GST, the concerned establishment had to pay the tax whether it was received from its customers or not. However, Under the MVAT, a person was required to pay the tax only when he had received the tax from his customers. In this case, there was huge payment due and payable from M/s. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both, the I.P.C. and under the MVAT. Shri. Saraogi further submitted that the said order was challenged before the Hon'ble Supreme Court in SLP (Cri.) Nos. 10264-10265 of 2018. The said SLP was dismissed; meaning thereby the ratio of Gagan Sharma (supra) was upheld. 5. Learned APP, on the other hand, opposed these submissions relying on the various judgments of the Hon'ble Supreme Court and of this Court. She made the following submissions: The proceedings preferred by the applicant before the NCLT are not bonafide. The allegations in the F.I.R. pertain to the period from 2009 to 2017 and the proceedings before the NCLT referred to herein above were preferred by the applicant in the year 2018. This shows that, it was filed with a malafide intention. The said proceedings were filed only against one entity namely M/s. CAN Enterprises Private Limited. However, evasion of the MVAT is in respect of the Applicant's business transactions with the four other entities namely Kavya Mira Realty, Vijaya Monterio, Gaula Closure and Vijayaben Kanji Asher. She submitted that, the investigation has revealed that the sale has been shown in the name of these four entities by the applicant's fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riminal W.P. No. 396 of 2012 with Criminal Application No. 494 of 2012: decided on 11.10.2012. In this case, registration of F.I.R. for the offences under the I.P.C. together with those under MVAT were challenged on the premise that, both these Acts were different. Learned APP submitted that, in this case, the division bench had referred to the case of State of W.B. V/s. Narayan Patodia (supra) and had not quashed the F.I.R. (v) Lastly, she relied on the order of a Single Judge bench of this Court in the case of Ashok S/O. Vittahalrao Sable Versus The State of Maharashtra in A.B.A. No. 790 of 2020, decided on 18.01.2021. She submitted that, the facts in that particular case are very similar to the present case. It was also an anticipatory bail application and there were allegations of evasion of tax. In that order, applicability of Sections 406 and 409 of the I.P.C. was considered in favour of the prosecuting agency. Lastly, she submitted that, Section 74(2) of the MVAT refers to willful attempt to evade any tax or payment of any tax. Both these eventualities are covered under section 74(2) of the MVAT. 7. In response to the legal submissions made by learned APP, Shri. Saraog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fence under two enactments, the offender may be prosecuted and punished under either or both enactments but shall not be liable to be punished twice for the same offence. The same set of facts, in conceivable cases, can constitute offences under two different laws. An act or an omission can amount to and constitute an offence under the Indian Penal Code and at the same time, an offence under any other law. The High Court ought to have taken note of Section 26 of the General Clauses Act, 1897 which reads as follows: 26. Provisions as to offences punishable under two or more enactments - Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence." These observations are with respect to Section 26 of the General Clauses Act. Thus, it is clearly laid down that, there was no bar to a trial or conviction of an offender under two different enactments. Same set of facts can constitute the offence under two different laws. This view was also taken in the case of Aman Mittal's case (supra). In that c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scussion made by the Division Bench, Narayan Patodia's case (supra) was relied on and the Division bench had refused to quash the F.I.R. when there were allegations that the accused had evaded the tax liability by preparing the false record. In paragraph 16 of the Judgment, the Division Bench held thus: "The Apex Court has in clear terms has held that merely because the accused has committed an offence falling under the special statute would not mean that the offences under the Indian Penal Code would get displaced. As already discussed herein above, the accused are also charged additionally for the offence punishable under Sections 465 and 471 of I.P.C. which are not common with any of the offences as provided under the VAT Act." 14. Thus, the ratio of the Division Bench Judgment in the case of G.S. Oils Ltd.'s (supra) is squarely applicable to the present facts of the case. The said Judgment in G.S. Oils Ltd.'s case (supra) specifically refers to the I.P.C. offences U/s. 406 and 420, as well as, to Section 74(2) of the MVAT. In this view of the matter, it is not necessary to refer to the ratio in Gagan Sharma's case (supra) which was in respect of a different statute altogeth ..... 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