9911796707
TMI Blog2021 (9) TMI 552X X X X Extracts X X X X X X X X Extracts X X X X ..... also, there is already an assessment, as is evident from the complaint filed by the department before the learned Special Chief Judicial Magistrate, Meerut, showing amount of input tax credit passed on to M/s M.F.P.L., as per the G.S.T.R.-2A of M/s M.F.P.L., to the extent of ₹ 31.64 crores, which has been fraudulently availed and utilized by the applicant-Sanjay Garg, even this argument that there has been no assessment and prosecution has been launched without any assessment, is not made out. There is no substance in the present application, calling for interference in either the complaint case or the order of cognizance or the order of the summoning - application dismissed. - Application U/S 482 No. - 13923 of 2021 - - - Dated:- 13-8-2021 - Hon'ble Vivek Agarwal, J. For the Applicant : Srijan Mehrotra,Abhinav Mehrotra For the Opposite Party : Dileep Chandra Mathur,Amit Mahajan ORDER HON'BLE VIVEK AGARWAL, J. 1. Heard Sri Abhinav Mehrotra, learned counsel for applicant, Sri D.C. Mathur, learned counsel for opposite party nos. 1, 2 and 4 and Sri Amit Mahajan, learned counsel for opposite party no. 3. 2. This Application U/S 482 has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that firstly, there is no assessment of the liability of evasion of tax or misappropriation of the tax and secondly, the saction order has not been passed by the competent authority. 7. Placing reliance on the provisions contained in Section 132(6), it is submitted that it is provided under the law that a person shall not be prosecuted for any offence under this Section except with the previous sanction of the Commissioner. It is submitted that as per Section 2(24) Commissioner means the Commissioner of Central Tax and includes the Principal Commissioner of Central Tax, appointed under Section 3 and the Commissioner of Integrated Tax appointed under the Integrated Goods and Services Tax Act. Reading Section 3, which defines the Officers under this Act, it is pointed out that Additional Director General is not an authorized Officer to accord necessary sanction for launching prosecution under Section 132 of the GST Act, 2017 against the present applicant. 8. It is further submitted that as per the provisions contained in the Scheme, there are several flaws and shortcomings. It is pointed out that as per Section 132(1)(b) and (c), punishment can be given to one who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the adjudication work, has held applicant to be guilty with a view to extract all possible tax from him. 12. Reliance is also placed on the decision of Supreme Court in case of C. Pradeep vs. Commissioner of GST and Central Excise, Selam; (2020) 77 GST 574 (SC) , saying that it is still pending in the Supreme Court and where in, on recording a finding that assessment for the relevant period, was not completed by the department, Supreme Court, prima facie, held that without completing the assessment, invoking provisions contained in Section 132 of the Act of 2017, does not arise. 13. Sri D.C. Mathur and Sri Amit Mahajan, in their turn, submits that as far as authority of the Additional Director General, Meerut Zonal Unit, Meerut is concerned, Government of India, Ministry of Finance, Department of Revenue, Central Board of Excise and Customs vide Notification No. 14/2007- Central Tax, New Delhi, 1st July, 2017 has declared Additional Director General, Goods and Services Tax, Intelligence or Additional Director General, Goods and Services Tax or Additional Director General, Audit to be equivallent to Commissioner and have been authorized to exercise powers of the Commissioner, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w that money has been paid to the bank which has been defrauded but also the society at large. It is not a case of simple assault or a theft of a trivial amount; but the offence with which we are concerned is a well planned and was committed with a deliberate design with an eye of personal profit regardless of consequence to the society at large. To quash the proceeding merely on the ground that the accused has settled the amount with the bank would be a misplaced sympathy. If the prosecution against the economic offenders are not allowed to continue, the entire community is aggrieved. 13. In this case, the High Court while exercising its inherent power ignored all the facts viz. the impact of the offence, the use of the State machinery to keep the matter pending for so many years coupled with the fraudulent conduct of the respondent. Considering the facts and circumstances of the case at hand in the light of the decision in Vikram Anantrai Doshi's case, the order of the High Court cannot be sustained. 16. Reliance is also placed on Para-20 of the judgment delivered by the Supreme Court of India in case of Standard Chartered Bank vs. Directorate of Enforcement, (2006 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equently, by filing an affidavit, applicants had retracted his statement and copy of this affidavit dated 02.06.2021 is available on record. It is evident that applicant was given an opportunity to appear and explain the circumstances appearing to the appropriate officer under the Act to give evidence and produce documents. Retraction of this statement, after about more than three months, is not the subject matter of the adjudication in an Application U/S 482 Cr.P.C. and therefore, for the present, I am restraining myself to deal with these issues, but the fact of the matter is that there is already an assessment, as is evident from the complaint filed by the department before the learned Special Chief Judicial Magistrate, Meerut, showing amount of input tax credit passed on to M/s M.F.P.L., as per the G.S.T.R.-2A of M/s M.F.P.L., to the extent of ₹ 31.64 crores, which has been fraudulently availed and utilized by the applicant-Sanjay Garg, even this argument that there has been no assessment and prosecution has been launched without any assessment, is not made out. 19. Coupled with the fact that when the ratio of the law laid down in case of Radheshyam Kejriwal (supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
