SAADAT ALI KHAN VS State, 2018 PTD-SUPREME-COURT 483 (2017)

(Against the judgment dated 29.6.2016 of the Lahore High Court, Lahore passed in Cr. Rs. Nos. 156, 154 and 155 of 2010)

(a) Sales Tax Act (VII of 1990)---

----S. 37-A(3)---Tax fraud---Offences and penalties---Fine, quantum of---Exercise of discretion by Trial Court---Scope---Trial Court should exercise its discretion of imposing a fine in a fair, transparent and structured manner---Court should impose a fine which was commensurate with the amount of loss that the accused had caused to the exchequer through tax fraud---Expression, "may extend" used in S. 37-A(3) of the Sales Tax Act, 1990 did not mean that the court had an unbridled and unrestricted discretion to impose as much or as little fine, as it may deem fit---Discretion had to be exercised keeping in view the facts and circumstances of the case.

(b) Sales Tax Act (VII of 1990)---

----S. 37-A(3)---Tax fraud---Offences and penalties---Fine, quantum of---Exercise of discretion by Trial Court---Scope---On the basis of voluntary confessional statements of the accused persons, the Trial Court convicted them, however, the sentence awarded was the period they had already spent in jail which was treated as sentence already undergone---Further, a fine/penalty in the sum of Rs.3000/- was imposed in each case---High Court maintained the punishment of sentence undergone but enhanced the amount of fine imposed by the Trial Court to the amount equal to loss of tax fraud committed; held, that the question of discretion in imposing fine had become totally irrelevant on account of the clear and unequivocal admission/confession made by the accused persons that they had committed the offence and defrauded the exchequer of an amount of Rs.2,04,60,105/----After having allowed the imprisonment as that already undergone, the amount of fine imposed should have been equivalent to the loss caused to the exchequer---No justification or reason had been recorded by the Trial Court for the exercise of discretion in favour of the accused persons by imposing a paltry sum of Rs.3000/- as fine in a mechanical manner---High Court validly and for appropriate reasons, enhanced the amount of fine---Appeal was dismissed accordingly.

(c) Sales Tax Act (VII of 1990)---

----S. 37-A(3)---Tax fraud---Offences and penalties---Erroneous application of law in imposing fine---Fine imposed by Trial Court enhanced by the High Court under an incorrect provision of law---No prejudice caused to accused---High Court may have relied upon a wrong provisions of law (in the Sales Tax Act, 1990], and enhanced the amount of fine imposed by the Trial Court, but the same power was also available to the High Court under S. 37-A(3) of the said Act, therefore, no prejudice had been caused to the accused persons on account of erroneous application of the relevant provision of the Sales Tax Act, 1990 by the High Court---Appeal was dismissed accordingly.

Ahmed Awais, Advocate Supreme Court for Appellants (in all cases).

Khalid Chaudhry, Advocate Supreme Court, Mrs. Tasneem Amin, Advocate-on-Record and M. Imran, Deputy Commissioner, Customs for Respondent (in all cases).

Date of hearing: 29th December, 2017.

ORDER

MIAN SAQIB NISAR, C.J.---All these matters have almost similar facts, thus we are considering the facts of one case i.e. Criminal Appeal No.394-L/2017. In this matter, the FIR was registered against the appellant on 20.8.2002 under the provisions of sections 37-A and 37-C for tax fraud under the Sales Tax Act, 1990 (Act, 1990). The challan was submitted before the Special Judge, Customs. While the trial was in progress and evidence of some of the witnesses had been recorded the appellants in this case and all other cases made voluntary confessional statements. The confessional statement of the appellant is reproduced as below:--

"I am a tax consultant and no firm was registered in any name. I deposited a sum of Rs.50,00,000/- (Rs. fifty lacs) in the Government Treasury when bail was granted to me after about two years and nine months remained in jail. I confess my guilt and while pleading guilty place myself on the mercy of the Court for taking lenient view in the matter. I also undertake not to repeat the offence in future."

(Note: this is the confessional statement in all other cases)

2.On the basis of voluntary confessional statements, the learned Trial Court convicted the appellants. The punishment awarded was, the period they had already spent in jail which was treated as sentence already undergone. Further, a fine/penalty in the sum of Rs.3000/- was imposed in each case. In consequence, the appellants were released on payment of the aforesaid fine.

3.This order of the Special Judge, Customs was challenged by the respondent/department in revision petitions before the learned High Court. These have been partly allowed. Though the punishment of sentence undergone has been maintained but as regards the fine imposed, the sentence has been enhanced to the amount equal to loss of tax fraud committed. The appellants have challenged this part of the judgment of the learned High Court and leave in these cases was granted to consider the following:-

"States that under the provisions of sections 37-A and 37-C of the Sales Tax Act, 1990 (the Act of 1990), on account of which the petitioner had been charged, convicted and sentenced ultimately by the learned High Court, was not an offence at the time when the petitioner had allegedly committed the offence, i.e. in the year 2002, because the provisions noted above have been introduced in the Act of 1990 vide the Finance Act, 2005 and therefore, do not have any retrospective effect. Besides, as mentioned earlier, the petitioner had not been charged thereunder.

2. In the circumstances, leave in all these cases is accordingly granted to consider inter alia the above."

4.Learned counsel for the appellants has strenuously argued that the learned High Court while enhancing the punishment of the appellants has relied upon the provisions of section 33 of the Act, 1990. He has pointed out that this provision had been inserted by virtue of the Finance Act, 2005. Therefore, at the point of time when the FIR was registered, neither this punishment was provided, nor could the same be imposed retrospectively.

5.We have heard the learned counsel for the parties and are of the view that obviously section 33(13), etc under which the learned High Court has exercised jurisdiction and enhanced the amount of fine does not have retrospective effect. However, the appellants were challaned under the provisions of section 37-A of the Act, 1990. Subsection (3) of section 37-A provides as follows:

"37A. Power to arrest and prosecute.--

(3) Where any person commits a tax fraud, he shall be punishable with imprisonment for a term which may extend to five years, or with fine which may extend to any amount equal to the loss of tax involved, or with both.

6.It is clear and obvious to us that the part of section 37-A(3) relating to fine grants a discretion to the trial Court to impose:-

i)Fine which may extend to any amount;

ii)Equal to the loss of tax involved;

iii)In addition to imprisonment.

Thus notwithstanding that the provisions of section 33 of the Act, 1990 had no retrospective application, we are in no manner of doubt that the trial Court should have exercised its discretion in a fair, transparent and structured manner. It should have imposed fine which was commensurate with the amount of loss that the accused had caused to the exchequer through tax fraud. The expression, "may extend" does not mean that the court had an unbridled and unrestricted discretion to impose as much, or as little fine, as it may have deemed fit. The discretion had to be exercised keeping in view the facts and circumstances of the case. Considering all attending facts and circumstances including as in these cases, the extent of loss caused to the exchequer by the appellants/accused by their fraud.

7.Even otherwise, in these cases the question of discretion had become totally irrelevant on account of the clear and unequivocal admission/confession made by the appellants that they had committed the offence and defrauded the exchequer of an amount of Rs.2,04,60,105/-. Thus, in the circumstances, after having allowed the imprisonment as that already undergone, the amount of fine imposed should have been equivalent to the loss caused to the exchequer.

8.We do not find any justification nor has any reason been recorded by the trial Court for the exercise of discretion in favour of the accused by imposing a paltry sum of Rs.3000/- as fine in a mechanical manner. Obviously when the department challenged the matter before the learned High Court, in revision which could always be converted into a writ petition, the learned Court validly and for appropriate reasons, enhanced the amount of fine. The learned High Court may have relied upon the wrong provisions of law, and enhanced the amount giving retrospective effect to section 33(13) read with other enabling provisions of the Sales Tax Act, 1990, but the same power was also available to the court under section 37-A(3) of the Act of 1990. Therefore, in our candid view, no prejudice has been caused to the appellants on account of erroneous application of the relevant provision of the Sales Tax Act, 1990 by the learned High Court.

9.Having found that the trial Court had incorrectly exercised its jurisdiction, and the power to impose fine equivalent to the loss of tax involved, was also available even under section 37-A(3) ibid, we do not find any merit in these appeals which are hereby dismissed.

MWA/S-1/SC Appeals dismissed.