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TMI Blog2022 (7) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the petitioners would be to the tune of approximately Rs.9.00 crores. From the affidavits filed by the respondents it is evident that investigation is on. Petitioners being taxable persons under GST are required to cooperate with the investigation which the petitioners state they are cooperating, though disputed by the respondents. While the respondents are empowered to investigate alleged GST evasion, however such investigation cannot be for an indefinite period. At one point of time it has to come to an end, whereafter if the materials/evidence demands, appropriate order is required to be passed by the adjudicating authority. That stage is yet to be reached. Even assuming that Rs.9.00 crores may be adjudicated as the GST not paid or evaded by petitioners, petitioners have the right to file appeal under Section 107(1) of the CGST Act and under Section 107(6) of the CGST Act if the petitioners deposit 10 per cent of the disputed tax, its appeal would be admitted for adjudication. This is a right provided by the statute. As against the alleged GST evasion of Rs.9.00 crores, petitioners have paid till date Rs.4.10 crores which is much higher than the statutory requirement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the highest GST payer in the State of Telangana insofar TMT Steel Industry is concerned. Petitioner No.2 is the Director of petitioner No.1. On the other hand, petitioner No.3 is the Proprietor of a concern called M/s.Gautam Trading Company. Petitioner No.3 is a relative of petitioner No.2. Though petitioner No.3 is not involved in the business affairs of petitioner No.1, nonetheless it is engaged in trade with petitioner No.1. Petitioner No.4 is the brother of petitioner No.2. He has his own business which is unconnected and unrelated to petitioner No.1. 4. On 11.12.2019, personnel and officials belonging to the second respondent i.e., Directorate General of GST Intelligence, New Delhi had conducted simultaneous raids on the business and residential premises of petitioner No.1 and petitioner No.2. It is alleged that in the course of such raids, the officials physically assaulted petitioner No.3 and subsequently petitioner Nos.2 and 3. In such circumstances, petitioners had approached this Court by filing W.P.No.28268 of 2019. The writ petition was filed basically to protect the petitioners from the alleged violence committed on them by the respondents. The writ petition was c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted so far, it is a case of evasion of GST to the tune of Rs.9.00 crores. Allegation is that from the facts unearthed during the investigation it has come to light that petitioner No.1 and its associated entities had indulged in huge evasion of GST to the tune of Rs.9.00 crores approximately which was further likely to increase. 13.1. Insofar effecting arrest under CGST is concerned, it is stated that prior to such arrest written approval of the Principal Additional Director General is required. It is further stated that there is no such proposal for arrest of petitioners or approval. Therefore it is contended that prayer B is premature and the writ petition is not maintainable. In the guise of the writ petition, petitioners are seeking anticipatory bail even before joining the investigation. It is further stated that prime object of GST authorities including the respondents is not to arrest persons but to detect and recover legitimate Government revenue from tax evaders, though respondents are armed with the power to arrest as a deterrent measure which is to be exercised by a high ranking officer on reasons to believe based on the material available on record. Thus the power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on an interim order dated 06.08.2019 by the Supreme Court in the SLP No.6834 of 2019 ( C.Pradeep v. Commissioner of GST and Central Excise, Selam ). 17. In his reply submission, Mr. Ojha has drawn the attention of the Court to the averments made by the respondents in the counter affidavit as well as in the sur-rejoinder. He submits that conduct of the petitioners is highly deplorable. The quantum of tax evasion may increase depending upon further investigation which the petitioners are avoiding on one pretext or the other. He submits that there is no cause of action whatsoever for filing the writ petition. Therefore, the writ petition should be dismissed with costs. 18. We have heard learned counsel for the parties. 19. To appreciate the factual context and the rival contentions, it would be appropriate to advert to the proceedings of W.P.No.28268 of 2019 filed by the petitioners. The said writ petition was filed by the petitioners seeking the following reliefs: A. Declaring the action of respondent Nos.2 to 9 in harassing, manhandling and assaulting petitioner Nos.2 to 4 purportedly conducted in furtherance of inquiry proceedings F.No.574/CE/ 198/2019/INV initiated ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thigh; unable to walk and bear weight; .. blunt injury at left thigh . 66. This suggests that the 3rd petitioner was injured to such a degree that he was unable to walk and required medical treatment. 67. That the 3rd petitioner was with respondents 5 to 9 on that day from the morning is admitted by them in the counter affidavit filed by respondents 1 to 4 and 10, though they say that such a thing had not happened. 68. Though the respondents seek to suggest that such evidence procured by the petitioners ought to be disbelieved by us because Sunshine Hospital is a private hospital and not a Government Hospital, we do not agree with such contention because there is no presumption in law that Doctors in private hospitals do not speak the truth and only Government doctors speak the truth. An injured person is likely to go the nearest available hospital for treatment instead of searching for a Government hospital at that juncture. 69. We cannot also ignore the Annexure P5 which is an acknowledgement given by the Police at 6.39 pm on 11.12.2019 that there was a call made by an employee of the 1st petitioner to Phone No.100 and that a case No.20190021545598 was assigned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates that it was issued after midnight on the intervening night of 11.12.2019 and 12.12.2019 asking the 2nd petitioner to appear at the ungodly hour of 00:30 hrs on that day. 85. What was so important to be recorded at such a time, which cannot wait till the morning of 12.12.2019, is not disclosed by the respondents. 86. We shall here refer to the plea in para 35 of the counter filed by the respondents 1 to 4 and 10 in this regard. They state as follows: it was imperative to record statement of Shri Pramod Agarwal (in pursuance of summons issued under sec.70 of the CGST Act, 2017) on the spot as preliminary investigation clearly suggested his role in the tax evasion by petitioner No.1. The petitioner No.2 was available at the spot i.e the Corporate Office of petitioner No.1. He was served the summons in his office. There is no bar to making enquiries under sec.70 of the GST Act, 2017 in the night itself 87. We are unable to accept this explanation offered by the respondents to justify the issuance of summons to the 2nd petitioner after the midnight of 11.12.2019 i.e., after 00:00 hrs on 12.12.2019 and asking him to appear before the 4th respondent at 00:30 hrs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10:30 a.m. and 05:00 p.m. on week days in the visible range of an Advocate appointed by them, who shall not be in hearing range; (d) the petitioner Nos.2 to 4 alone can be summoned to New Delhi for the purpose of the above enquiry by the respondents on one occasion for two to three days, and rest of their interrogation and those of their employees shall be conducted at Hyderabad by the respondents; and (e) the respondents shall adhere to the provisions of the CGST Act, 2017 in conducting search, investigation or enquiry in relation to the alleged tax evasion by the petitioners. 24. Insofar the direction contained in (b) as extracted above is concerned, the fifth respondent in the said proceedings was Mr.Ramdhan Dagar (IRS), Deputy Director, Directorate General of GST Intelligence, New Delhi. As already noted above, the above order of this Court dated 06.11.2020 has been accepted by the respondents and is thus binding on the respondents. 25. In the context of extreme bitterness between the parties as recorded by this Court in its order dated 06.11.2020, the apprehension of arrest expressed by the petitioners cannot be brushed aside. However respondents in their counter a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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