2021 (9) TMI 576 - DSC - GST

Seeking grant of Anticipatory Bail - fraudulent availment of ITC - Appellant claimed protection from the arrest on the ground that he is falsely implicated in the alleged offence - Section 132 (b) of GST Act 2017 - Compoundable offence or not - HELD THAT - Any offence under CGST Act 2017, is compoundable both before and after institution of prosecution, but the applicant had not offered to compound the offence, though compounding is permissible, even before the institution of prosecution. In third proviso of sub section (1) of Section 138 of CGST Act, Compounding can be allowed only on making payment of tax, interest and penalty involved in the said case. As per the allegations, the ITC availment to the tune of ₹ 30 Crores approximately, from M/s. Karnataka Jewellers, M/s. Balaji Enterprises, M/s. Kismat Enterprises has been made by the applicant. Therefore, argument of learned Advocate for applicant that as he has co operated the investigation and his statements have been recorded by the Department and therefore, there cannot be any arrest as long as offences are compoundable, is an argument which cannot be accepted. Considering the investigation as per the case diary and the allegations of Department against the applicant, the supplier of M/s. Gajmukhi Buillion, M/s. Maple Fine Jewellery, M/s. Alentraa Trading Private Limited, Pramod Suraj Prasad Gupta (Eagle Impex), M/s. Center core Multi trading Private Limited, M/s. Dolphin Multi Trade Company, M/s. Creative Overseas and M/s. Nevaki Enterprises Private Limited are bogus firms are seems to be created to do paper transaction only. The request of the applicant as regards grant of anticipatory bail application has to be turned down - application dismissed.

Issues Involved:

1. Apprehension of arrest and request for anticipatory bail.
2. Allegations of fraudulent transactions and wrongful availment of Input Tax Credit (ITC).
3. Compliance with summons and cooperation with the investigation.
4. Legal precedents and applicability of judgments cited by both parties.
5. Compounding of offenses under the CGST Act.

Detailed Analysis:

1. Apprehension of Arrest and Request for Anticipatory Bail:
The applicant filed for anticipatory bail fearing arrest due to a summons issued on 25.03.2021 under Section 70 of the Central Goods and Services Act, 2017 (CGST Act). The applicant claimed false implication in the alleged offense and argued that the GST Act is a fiscal statute, and no show cause notice under Section 73 of the GST Act had been received. The applicant contended that custodial interrogation was unwarranted as the maximum punishment under Section 132 of the GST Act is five years, and further incarceration was unnecessary as per the precedent set in Sanjay Chandra v. C.B.I. The applicant emphasized his willingness to cooperate and his permanent residency in Mumbai, negating any risk of absconding.

2. Allegations of Fraudulent Transactions and Wrongful Availment of ITC:
Respondent No.2, representing the Commissioner of CGST, argued that the applicant was involved in fraudulent transactions, passing ITC worth ?2,54,61,612 to M/s. Gajmukhi Bullion, a non-existent firm, without actual receipt of goods. Additionally, the applicant allegedly availed ITC of ?15,22,02,368 from another non-existent taxpayer, M/s. Karnataka Jewellers. Respondent No.2 highlighted the need for thorough investigation to ascertain the financial tax liability and the fraudulent nature of the transactions, as the applicant had failed to appear before the Superintendent and provide the required financial records.

3. Compliance with Summons and Cooperation with the Investigation:
The applicant provided evidence of attending multiple sessions with the investigating officers and submitting various documents, including GST returns, bank statements, and ledgers. Despite this, Respondent No.2 maintained that the applicant's cooperation was insufficient, and further investigation was necessary to uncover the full extent of the fraudulent activities. The applicant argued that the firms involved were registered and active, and any failure to update the GST portal was due to inadvertence or unawareness of procedures.

4. Legal Precedents and Applicability of Judgments Cited by Both Parties:
The applicant cited judgments from Sanjay Chandra v. C.B.I. and Daulat Sumairmal Mehta v. Union of India, arguing for bail based on cooperation and lack of criminal antecedents. However, the court found these judgments inapplicable as they pertained to post-arrest scenarios under Section 439 of Cr.P.C. Respondent No.2 cited Harshad S. Mehta v. Union of India and Nimmagadda Prasad v. Central Bureau of Investigation, which were distinguishable in facts and not directly applicable. The court also considered the judgment in P.V. Ramana Reddy v. Union of India, which discussed the maintainability of writ petitions against arrest under the CGST Act but ultimately denied relief against arrest due to the special circumstances of that case.

5. Compounding of Offenses under the CGST Act:
The court noted that offenses under the CGST Act are compoundable, both before and after the institution of prosecution, but the applicant had not offered to compound the offense. The third proviso of Section 138 of the CGST Act allows compounding only upon payment of tax, interest, and penalty. Given the allegations of wrongful ITC availment amounting to approximately ?30 Crores, the court rejected the argument that cooperation with the investigation should preclude arrest. The court emphasized the need to investigate and prosecute those guilty of offenses, referencing the Union of India v. Sapna Jain case, where the Supreme Court highlighted the importance of considering contrary views in similar cases.

Conclusion:
The court denied the applicant's request for anticipatory bail, citing the need for further investigation into the fraudulent transactions and the significant amount of evaded government revenue. The court ordered the return of the case diary to the CGST officer and disposed of A.B.A. No.775 of 2021 accordingly.

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