Punjab-Haryana High Court
M/S Shikha Trading Co vs The State Of Punjab And Another on 8 December, 2010
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel, Ajay Kumar Mittal
CWP No.19909 of 2010 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CWP No.19909 of 2010
Date of decision: 8.12.2010
M/s Shikha Trading Co.
-----Petitioner
Vs.
The State of Punjab and another
----Respondents
CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL
HON'BLE MR. JUSTICE AJAY KUMAR MITTAL
Present:- Mr. Sandeep Goyal, Advocate for the petitioner.
Mr. Jaswinder Singh, Deputy Advocate General, Punjab.
Adarsh Kumar Goel,J.
1. This petition seeks direction to the department of Excise and Taxation, Punjab to allow the petitioner to enter its shop after breaking open the seal put thereon by the department.
2. Case set out in the petition is that the petitioner is registered under the provisions of the Punjab VAT Act, 2005 and is doing business at Ludhiana. On 13.9.2010, at 5 PM, in absence of proprietor of the petitioner-firm, some officials of the department of the Excise and Taxation sealed the premises of the petitioner and took signatures of its Class IV employee Mr. Bobby on blank papers. Photographs of the seal have been filed as Annexure P.4. The petitioner visited the department but could not get any response. It filed CWP No.17442 of 2010 in this Court which was disposed of on 27.9.2010 as premature with a direction that if a representation was made within one CWP No.19909 of 2010 2 week, the concerned authority may take decision thereon within 10 days thereafter. Accordingly, the petitioner made representation dated 29.9.2010 Annexure P.6 addressed, inter-alia, to Assistant Excise and Taxation Commissioner, Ludhiana-I by speed post but no decision was taken thereon. In the circumstances, the petitioner could not even file its return for the quarter ending 30.9.2010 and filed application for extension of time Annexure P.7 dated 31.10.2010. Thereafter, this petition was filed on 1.11.2010.
3. On 9.11.2010, following order was passed:-
"Grievance in this petition is that inspite of order of this Court dated 27.9.2010, Annexure P.5, no decision is being taken in the matter by respondent No.2.
Notice of motion.
Mr. Piyush Kant Jain, Additional Advocate General, Punjab, accepts notice and seeks time.
List again on 25.11.2010.
On the next date, decision taken on the grievance of the petitioner be produced in Court failing which respondent No.2 himself may appear in person."
Thereafter on 25.11.2010, following order was passed:-
"1. This petition seeks a direction to require the Excise and Taxation Officer, Ludhiana I to allow the petitioner to open its shop.
2. Case of the petitioner is that on 13.9.2010 in absence of proprietor of the petitioner, its business premises were sealed by the representative of the Excise and Taxation Department. Though the CWP No.19909 of 2010 3 petitioner approached the said department repeatedly but no response was being received. Aggrieved thereby, CWP No.17442 of 2010 was filed in this Court which was disposed on 27.9.2010 with a direction that if a representation is placed (filed ?) within one week, decision thereon be taken within 10 days. The petitioner made representation dated 29.9.2010 but no decision was taken thereon till the filing of the writ petition on 8.11.2010. The photographs have been annexed to show that the premises of the petitioner were sealed.
3. Notice was issued by this Court on 9.11.2010, in response to which, learned counsel for the State says that the decision on the representation of the petitioner was taken on 21.10.2010 and it was held that the department had never sealed the shop.
4. We have heard learned counsel for the parties.
5. Learned counsel for the petitioner submits that from the material on record, following facts are clear:-
i) the shop has been sealed by the department and the denial by the department in letter dated 21.10.2010 is, prima facie, false;
ii) Direction of this Court dated 27.9.2010 requiring decision to be taken on representation of the petitioner within 10 days has been deliberately flouted by the Assistant Excise and Taxation Commissioner, Ludhiana which amounts to contempt;
iii) The decision said to have been taken on 21.11.2010 (21.10.2010 ?) appears to have been ante- dated and has been taken only after notice was issued by this Court on 9.11.2010. Decision on the representation bears signatures of Assistant Excise CWP No.19909 of 2010 4 and Taxation Commissioner while the despatch number is of the ETO. If decision would have been earlier taken, the same would have been got acknowledged from the petitioner and there was no need for filing of this petition. Acknowledgment was taken only two days back to create a false defence.
6. Since the points made will require consideration, let the Assistant Excise and Taxation Commissioner, Ludhiana-I file his affidavit and remain present in Court.
7. In the meanwhile, the petitioner is at liberty to open and run its shop in accordance with law.
8. List again on 8.12.2010."
4. Shri Rishi Pal Singh, Assistant Excise and Taxation Commissioner (AETC), Ludhiana-I is present in Court in person. He has also filed an affidavit stating that the petitioner firm was engaged in making ingenuine transactions. FIR was lodged against M/s Hitanshu Sales Corporation, Mandi Gobindgarh. A team of officers was deputed on 13.9.2010 to visit the premises of the petitioner to verify its transactions and statement of one Mr. Bobby was recorded and certain documents were impounded. Representation dated 29.9.2010 against locking and sealing of the premises was received, which was disposed of on 21.10.2010 which order was personally received by the petitioner as per entry in the despatch register at No.3032/21.10.2010.
5. We have heard learned counsel for the parties and perused the record.
CWP No.19909 of 2010 5
6. Learned counsel for the petitioner submitted that in pursuance of order dated 25.11.2010, the petitioner has opened its shop and in that regard the petition has become infructuous.
7. Accordingly, the main petition will stand disposed of as infructuous.
8. Only question which survives is action to be taken on the issues noticed in order dated 25.11.2010 showing, prima facie, ante dating of order purported to have been passed on 21.10.2010 by the AETC.
9. Learned counsel for the petitioner reiterates that stand taken in the affidavit of Mr. Rishi Pal Singh as AETC that decision on the representation of the petitioner was taken, despatched and got acknowledged from the petitioner on 21.10.2010, was false. If that would have been done, the petitioner would not have moved this court and would not continue to suffer on account of locking of the premises. The said order was actually passed after order of this Court dated 9.11.2010 to create a false defence as to compliance of order of this Court dated 27.9.2010 and to cover up illegal action of locking of shop of the petitioner. The stand that the locking of the shop of the petitioner was not done by any representative of the department, was also false. In these circumstances, it will not be expedient in the interest of justice to ignore such perjury and forgery made and protected by a senior officer.
10. Learned counsel for the State and Mr. Rishi Pal Singh, AETC in person opposed the submission and stated that shop of the petitioner was not locked by the Excise department and representation CWP No.19909 of 2010 6 was duly decided on 21.10.2010 and the said order was despatched and conveyed to the petitioner. In support of this submission, a photo copy of the relevant entry from the despatch register has been relied upon and the original despatch register has also been produced.
11. After due consideration of the rival stands, we are, prima facie, satisfied that the stand taken in the affidavit of Mr. Rishi Pal Singh is false.
12. Case of the petitioner is that team of the department visited the petitioner's premises on 13.9.2010 and illegally sealed the same. It is not disputed that the said team had visited the premises but sealing has been denied. Proceedings at the time of visit have not been produced. There is no reason for the petitioner to falsely allege sealing which is also shown in the photograph. It is not the case of the AETC that the petitioner has any animus against him. Thus, prima-facie, it has to be held that sealing of the premises was by or at the instance of the department. It is further clear that order on representation purporting to be dated 21.10.2010 was passed much later than the said date and has been ante-dated and the entry in the despatch register dated 21.10.2010 has been forged. If order had been passed and conveyed on 21.10.2010, there would have been no occasion for the petitioner to move this Court. Ink used, use of English language only for one entry as against all other entries in vernacular and pattern of entries in the despatch register create serious doubt about genuineness thereof. Men may tell lie but circumstances may not. Action of the AETC in taking an apparently false stand cannot be ignored. Since these actions of or at the instance of Mr. Rishi Pal Singh, AETC, Ludhiana I constitute CWP No.19909 of 2010 7 cognizable offences, we direct SSP Ludhiana to get a criminal case registered and have the investigation conducted in accordance with law within three months from the date of receipt of a copy of this order. Further action may also be taken as per findings of investigation. Compliance report with copy of report of investigation may be forwarded to this Court apart from report of investigation being submitted to the concerned Court. It is made clear that observations made herein are prima-facie and will not affect final conclusion in investigation or trial.
13. A copy of this order be sent to the SSP, Ludhiana alongwith original register which has been kept in Court and a copy of all the papers of the case.
14. The petition is disposed of.
(Adarsh Kumar Goel)
Judge
December 8, 2010 (Ajay Kumar Mittal)
'gs' Judge