For want of proper locus standi
Update: At the second hearing of the ongoing Jatan Prasad Lal Chand Prasad (JPLP) case yesterday, its owner Lal Chand Prasad, the defendant asked the dungkhag court to dismiss the case against him for want of proper “locus standi” (no basis) from the Office of the Attorney General (OAG).
The defendant asserted in his opening statement that the Anti-Corruption Commission’s (ACC) prosecutor, which is the OAG does not have basis to prosecute a tax evasion case.
The defendant’s legal counsel, Younten Dorji, also submitted that OAG prosecuting the case was violating due process of law under the Income Tax Act (ITA) 2001, and asked to dismiss the case, in order to prevent a wrongful precedent.
JPLP is charged for tax evasion on four counts for the income of 2011, 2012, 2013, and 2014, claiming a total tax liability of more than Nu 184.90 million, which is inclusive of 30 percent BIT, twice the amount of BIT as penalty for concealment of income and further addition of 24 percent penal interest for late payment of tax.
“The prosecution has not charged any of the tax assessment officers from the Department of Revenue and Customs (DRC) for corruption in the present case as crime partners,” the defense counsel submitted.
Such being the scenario, “the defendant is constrained to most respectfully contest the “locus standi” of ACC/OAG in the present tax matter. The OAG has no locus standi and it is not its case,” the legal counsel submitted.
The foremost of the reasons, the defendant’s representative submitted is that the commission’s investigation has failed to reveal any corruptive collusion between tax assessment officers of customs and JPLP.
“Without such collusion or criminal nexus between the tax assessor and assessee, resulting in the collection of lesser tax, a third party agency like ACC cannot legally interfere to oust the jurisdiction of DRC. The ITA 2001 provides under section 1 (f) that it be implemented by Ministry of Finance,” the defendant’s representative stated.
Another major impression at the opening statement yesterday was that the defendant’s legal representative also wrote to the dungkhag court to order the prosecution to pay the defendant Nu 10 million. The amount, the statement mentioned was for the enormous mental trauma, the physical hardship, the family infamy and indignity, and adverse image painted by the ACC in its course of 93 days detention of the defendant and for the loss incurred by its four months suspension of JPLP departmental store in Phuentsholing.
Lal Chand Prasad’s legal representative wrote, “That the prosecutor be ordered in future to refrain from usurping the lawful authorities of other equally important competent authorities or wrongly imposing its mandates into areas where there is no apparent elements of corruptive collusion involved.”
If the case has to continue, the prosecutor, according to the defendant has to be ordered for an exhaustive discovery under Chapter 7 and 8 of CCPC 2001 for all those documentary proofs, which the OAG intends to use as evidence. Should the commission’s prosecutor fail to do so, the defendant stated that the prosecutor get barred from adducing such documents subsequently as evidence of the case.
Further, should the case continue, the prosecutor also has to choose one particular law to be charged to the particular offence. Meanwhile, this impression had been pointed with the defendant and his representative considering the non-applicability of two parallel laws, the Penal Code and ITA 2001.
On this, Lal Chand Prasad’s legal representative pointed out that prosecution had applied ITA 2001 in order to recover tax. This was considering the imposition of twice the amount of BIT (30 percent) as penalty for concealment of income, in addition to the tax amount due, and a further 24 percent penal interest for late payment. However, the argument is about the defendant being charged for a value-based sentencing under Penal code, which the legal representative pointed, was not contemplated under the ITA 2001.
It vexes the defendant twice for the same offence, it was criticized.
“It is against the principle of Double Jeopardy,” the statement argued. “Since the alleged offence of the defendant is only tax evasion, which constitutes only a particular Act, it should attract only one particular law and not two conflicting laws simultaneously.”
Rajesh Rai, Phuentsholing