1981 PLP 59 (PTD)

Dates of hearing : 29th March and 5th April, 1980. This appeal under section 410, Cr. P. C., is preferred against the judgment dated 30th September, 1974, of the learned Special Judge (Customs & Taxation) Karachi, whereby he convicted the appellant under section 25 of the Sales Tax Act, 1951 and sentenced him till the rising of Court and to pay a fine of Rs. 1,000 or in default of payment of fine to suffer R. I. for 4 months.

2. The brief facts of the case are that the appellant is the Managing Director of Messrs Mustafa Pre‑Stressed Pipe Works Ltd., Karachi and Hassan Abdal. He was required to file quarterly Returns of sales tax .assessment. He filed such Returns but showed his sales as "Nil" in his Returns for the accounting year 1968‑1969. The appellant however while filing the Income‑tax Returns for the same period showed the sales of pipes for the purposes of Income‑tax to be Rs. 26,07,

936. The income‑tax Officer issued notice to the appellant under section 24 of the Sales Tax Act and the appellant in respond to such notice filed his revised Returns on 19-5‑1973 for the period in question showing the sales at the aforesaid figure. The Sales Tax Officer by his order dated 20th June, 1973 assessed the appellant on the sales figures supplied by him in the revised Returns. It was after this that the Income‑tax Officer after getting the required sanction from the competent authority to prosecute the appellant filed the complaint against him.

3. The prosecution examined the Sales Tax Officer Shamim‑Ahmed P. W. 1, who produced the copies of the Returns filed by the appellant and also all those documents which were got produced by the learned counsel for the appellant.

4. The appellant however admitted the entire prosecution case and explained the filing of the "Nil" Returns due to strike in his factory at Hassan Abdal and his Accountant not sending him the figures at the proper time.

5. Mr. S. A. Qadri, the learned counsel for the appellant contends that the appellant being aggrieved with the assessment orders on the basis of which the appellant has been convicted had preferred appeal before the Income‑tax Appellate Tribunal (Karachi Bench), Karachi which was allowed and the assessment was quashed and certain observations affecting the merits of this case were also made by the Tribunal which are in favour of the appellant and. the complaint before the Special Judge was not warranted by law. It has also been contended that the complaint has been filed by the Sales Tax Officer, before the Special Judge, and he being incompetent person to file such complaint, the conviction and sentence based on it are liable to set aside.

6. Mr. S. Murtaza Hussain, the learned counsel appearing for the State, on the other hand has contended that the complainant was a competent person to file the complaint and there is nothing in the order of the Tribunal which in any way affects the merits of the case. The complaint is for escaped assessment for which the only forum, under the law, to deal with such assessee s is the Court of Special Judge, and the procedure followed in this matter is in accordance with law. Moreover any orders passed by the Tribunal would not in any way change the complexion of the criminal offence. The point of jurisdiction has not been raised before the Special Judge and even otherwise there is nothing wrong with it. The Tribunal in its observations on the contrary while allowing the appeal has held the proceedings initiated by the Sales Tax Officer were valid and proper. The case against the appellant has been proved beyond any reasonable doubt, and this appeal merits no consideration.

7. I have considered the contentions of the learned counsel for the appellant as well as State. I have also gone through the evidence, docu ments produced on the record by the parties and the order of the Income tax Appellate Tribunal (Karachi Bench) Karachi. The case of the appellant is not of the denial of the allegations against him but that of giving explanation for filing "Nil" Returns. The learned counsel for the appellant has laid great stress on the point that the proceedings of assessment before the Sales Tax Officer who is complainant in this case have been quashed by the Appellate Tribunal in respect of the years for which he has been convicted, therefore, his conviction is liable to be set aside. The proceedings of assessment have no doubt been quashed by the Tribunal though on technical ground but it has nothing to do with the proceedings of this case. The proceedings of assessment are separate matters and offence for escaped assessment is quite different from it. The explanation advanced by the appellant for filing "Nil" Returns is without any force and the fact remains that he filed the Returns which he knew and believed to be false. I find lot of strength in the assertion of the learned counsel for the State that any order passed by the Appellate Tribunal would not change the complexion of the criminal offence. The observations of the Tribunal, however are that the proceedings initiated by the Sales Tax Officer are valid and proper. I don't think these observations in any way are in favour of the appellant as contended by the learned counsel for him. The prosecu tion has successfully proved the case against the appellant and there is nothing on the record so as to justify interference with the impugned judgment.

8. In the result this appeal fails and is hereby dismissed. Appeal dismissed.