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TMI Blog2023 (12) TMI 737X X X X Extracts X X X X X X X X Extracts X X X X ..... the business places of Lakshmi Mobile Accessories at Kottayam were seized. On verification, it was found that the petitioner had suppressed a total turnover of Rs.34,15,42,040/- for the years 2021-2022, 2022-2023 and 2023-2024 and has evaded tax approximately to the tune of Rs.6,14,77,567/- being 18% of the taxable turnover. It was also found that the petitioner was doing business even from the VAT regime, and therefore, the suppression for the years 2017-2018, 2018-2019, 2019-2020 and 2020-2021 had to be verified. Based on the above accusations, the petitioner had committed cognizable and non-bailable offences under Section 132(5) of the GST Act, 2017. Power to arrest - HELD THAT:- The power to arrest is one, and the exercise of the same i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication dismissed. - THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C. P. FOR THE PETITIONER : BY ADVS. C.S.MANILAL S.NIDHEESH FOR THE RESPONDENT : SRI.MOHAMED RAFIQ, SPL. GOVT. PLEADER, TAXES PUBLIC PROSECUTOR SRI.M.C. ASHI ORDER This is an application filed under Section 439 of the Code of Criminal Procedure seeking regular bail. 2. Petitioner is the sole accused in crime file No.GST/INS-7/2023 registered based on the complaint of the 1st respondent under Section 132(1) of the Kerala State Goods and Service Act, 2017. 3. The gist of the prosecution case is as follows:- Petitioner is the accused in the above crime registered based on the complaint of the 1st respondent under Section 132(1) of the Kerala State Goods and Service Act, 2017. The ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of the petitioner on bail. 5. The learned counsel for the petitioner further argues that going by the provisions of GST, particularly Section 132, it has to be seen that the power of arrest can be invoked only after an assessment is made and not before. He relied on the judgment of the Madras High Court reported in Jayachandran Alloys (P) Ltd. v. Superintendent of GST C. Ex., Salem [MANU/TN/3348/2019] and that of the Madhya Pradesh High Court reported in Jagdish Arora and others v. Union of India [MANU/MP/1035/2020] in this regard. It is also argued that custody of the petitioner was given for five days. After that, permission has been granted to interrogate the petitioner in jail for four days. Under such circumstances, since the invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tage would certainly affect a proper investigation. The allegation that he supplied goods without issuing any invoice is not answered even now. The contention that the arrest can be made only after the quantification cannot be accepted as it goes against the very section itself. 7. Heard both sides and perused the records. 8. The petitioner is a proprietor registered under the GST and a wholesale distributor of mobile accessories and electronic items coming under HSN code 8517, which is taxable at 18%. The department alleges that the petitioner was supplying goods without issuing invoices to his customers and was evading tax due to the Government. The transaction by the petitioner was with an intention to suppress his actual outward taxable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apprehension is well founded. The investigation is only at a nascent stage. 9. As regards the contention of the learned counsel for the petitioner that there is no power to arrest and that the prosecution or the steps for arrest can be taken only after the completion of the assessment proceedings, the same has to be rejected for multiple reasons. The list of offences mentioned in sub-sections of Section 132 of the GST Act has no correlation to any assessment. Issue of invoices or bills without supply of goods and availing of the input tax credit by using such invoices or bills are made offences under clauses (b) and (c) of sub-section (1) of Section 132 of the CGST Act. The prosecution for these offences does not depend upon the completion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anically done, the conditions precedent to arrest for the alleged offences set out in Section 132 of the CGST Act must be fulfilled. But, once the ingredients of the offence are made out, the Commissioner or the competent authority can determine if the offender is to be arrested or not. If it is to ensure a proper investigation and prevent the possibility of tampering with evidence or intimidating or influencing the witnesses, the power can certainly be exercised. However, in cases of alleged violation of a technical nature, like where a demand of tax is based on a difference of opinion regarding the interpretation of law or such analogous grounds, the power to arrest must be very carefully exercised, having regard to the provisions of S.41 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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