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TMI Blog2021 (3) TMI 853X X X X Extracts X X X X X X X X Extracts X X X X ..... d when the evidence is adduced by both the parties. No doubt, Section 4(2) Cr.P.C. does stipulate that if a special procedure is prescribed under a special enactment then the procedure would have to be followed as per the enactment and not under the Code and perusal of Section 132(6) of the CGST Act, also makes it abundantly clear and leaves no manner of doubt that a person under this section can be prosecuted for an offence only with the previous sanction of the Commissioner. However, in the case in hand the 'prosecution' of the petitioner has not even been initiated. Prosecution of a person or an accused commences only when the Magistrate or Court concerned takes cognizance of the same. In other words, prosecution means the initiation or commencement of the criminal proceedings when formal charge-sheet is presented before a Court of law. Coming to the instant case, as already admitted by the learned counsel for the petitioner, investigation is still underway and chargesheet/ final report under Section 173 Cr.P.C. has not yet been presented before the Court concerned. The complaint filed by respondent No.2 cannot be said to be beyond his jurisdiction because the prev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t No.2 Excise Taxation Officer, Ward No.8, Gurugram (East), without as much as carrying out the necessary verifications went ahead and made a complaint leading to the registration of the FIR in question. Learned counsel for the petitioner has further submitted that since the petitioner was not associated with the Company after his resignation on 05.01.2018, he could not be held culpable of wrong doings, if any, committed by the Company after the date of his resignation. He has further submitted that in fact, even prior to his resignation from the Company on 05.01.2018, there was nothing on record from which it could be shown that a wrong claim had been made by the Company, as not even a single transaction had been carried out by it. Lastly, learned counsel for the petitioner has submitted that it was very apparent that respondent No.2 had been very casual in filing the complaint without even issuing a show cause notice to the Company or the petitioner. Not only this, respondent No.2 went way beyond his jurisdiction as he could not have set the criminal law in motion without the prior permission of the Commissioner of Central Government as provided for under Section 132(6) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven as on date. Learned State counsel in support of her submissions referred to Annexure R-5, which was a print out of the GST portal, wherein, the name of the petitioner duly finds mention on 19.07.2019 i.e. the date of the registration of the FIR in question. Learned State counsel has further submitted that had his claim of having resigned from the Company been genuine, some application as envisaged under Section 28 of the CGST Act, for amendment of the registration certificate would have been made, but that was clearly not the case, which made it abundantly clear that the claim of resignation w.e.f. 05.01.2018, was an eye wash with an oblique motive to get away from the GST as well as penal liability. Learned State counsel has strongly disputed and controverted the submission made by the learned counsel for the petitioner that respondent No.2 had exceeded his jurisdiction while filing the complaint leading to the registration of FIR in question. She has submitted that Govt. of India, Ministry of Finance, Department of Revenue had issued clarification dated 05.10.2018, intimating therein that the officers of both Central Tax and State Tax are authorized to initiate intelligenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erway and final report under Section 173 Cr.P.C. has not yet been presented by the investigating agency. Therefore, this Court would not be justified in embarking upon the truthfulness or falsehood of the allegations levelled in the complaint. Moreover, a perusal of the FIR in question does prima facie disclose the commission of offences alleged against the petitioner. Needless to add the correctness or otherwise of the allegations would be gone into by the trial Court as and when the evidence is adduced by both the parties. Adverting to the grievance of the petitioner that respondent No.2, who was an ETO and thus, could not have set the criminal law in motion without the previous sanction/permission of the Commissioner of Central Government as provided for under Section 132(6) of the CGST Act, is devoid of merit. It would be apposite to reproduce Section 132 of the CGST Act:- SECTION 132. Punishment for certain offences.-- (1) Whoever commits any of the following offences, namely :-- (a) supplies any goods or services or both without issue of any invoice, in violation of the provisions of this Act or the rules made thereunder, with the intention to evade tax; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not exceed five hundred lakh rupees, with imprisonment for a term which may extend to three years and with fine; (iii) in the case of any other offence where the amount of tax evaded or the amount of input tax credit wrongly availed or utilised or the amount of refund wrongly taken exceeds one hundred lakh rupees but does not exceed two hundred lakh rupees, with imprisonment for a term which may extend to one year and with fine; (iv) in cases where he commits or abets the commission of an offence specified in clause (f) or clause (g) or clause (j), he shall be punishable with imprisonment for a term which may extend to six months or with fine or with both. (2) Where any person convicted of an offence under this section is again convicted of an offence under this section, then, he shall be punishable for the second and for every subsequent offence with imprisonment for a term which may extend to five years and with fine. (3) The imprisonment referred to in clauses (i), (ii) and (iii) of sub-section (1) and sub-section (2) shall, in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the Court, be for a term not less ..... X X X X Extracts X X X X X X X X Extracts X X X X
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