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TMI Blog2025 (1) TMI 400X X X X Extracts X X X X X X X X Extracts X X X X ..... ss-examine the witnesses to prove the trustworthiness of their version. The allegation against the accused petitioner is that he has issued fake invoices so as to pass on the input tax credit which has caused huge loss to the economy by evasion of GST - The investigation is continuing for the last more than one year and the complaint has already been filed against the accused petitioner. The Department has not been even able to find out that how much input tax credit has been claimed by which of the beneficiaries. During the course of arguments, on a query put- forth by the Court, the learned Public Prosecutor on instructions stated that in cases registered under section 132 of the Act of 2017, the Competent Authority can continue the investigation for a maximum period of five years. He on instructions of the Department Officers also stated that in the present case, they will conclude the investigation within maximum further one year. Once a complaint has been filed on the basis of investigation made by the prosecution, in a criminal jurisprudence no further evidence collected, can be used against such an accused person. Conclusion - The present case was registered on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IPC stating that the accused petitioner is neither appearing for recording his statement and nor submitting the documents in pursuance of notice issued to him. The said complaint was filed on 02.09.2024 before the concerned Magistrate and requested to take cognizance. 5. After arresting the petitioner and making investigation, the Enforcement Officer Goods and Service Tax Directorate, Jaipur Unit, Jaipur submitted the complaint before the Special Court against the accused petitioner for the offence punishable under section 132(1) of the Act of 2017 stating that in the statements of one Ashutosh Garg recorded on 31.10.2023 and 1.11.2023 during investigation of case number registered at DGGIJZU bearing No. F. F.No. DGGI/INV/GST/ 123/ 2023-Gr. F.0/oADG-ZU- Jaipur. In the aforesaid statements he is said to have that he has created 70-80 fake firms and given to one Anil Garg and the accused petitioner- Pankaj Aggarwal in lieu of Rs. 5 lakh each and he is further said to have stated that he used to file the return, however, accused petitioner Pankaj Aggarwal used to issue the invoices of scrap, hosiery, paper products etc. and on the basis of his statements, investigation was started an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner was arrested on 23.04.2024 and since then he is behind the bars. Counsel further submits that the offence alleged to have been committed by the accused petitioner is compoundable u/S 138 of the Act of 2017 and maximum sentence provided is five years. Counsel also submits that Ashutosh Garg on whose statements this case has been registered, has been granted bail by Hon'ble Supreme Court. Counsel further submits that a complaint has already been filed u/S 190 CrPC and further there is no provision of supplementary complaint, therefore there is no scope of further investigation available in law. Counsel also submits that till date no calculation and names are brought on record to show the amount of ITC actually availed by beneficial users or the amount of ITC taken as refund by beneficial users, therefore, no evidence of loss to the Government Exchequer is brought on record. Counsel further submits that no evidence is made part of the complaint to show prime facie that ingredients of Section 132(1) are fulfilled. Counsel also submits that no recovery of any amount has been made from the accused petitioner since the start of investigation. Counsel further submits that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed reliance upon following judgments:- 1. Ashutosh Garg Vs. Union of India [Petition (s) for Special Leave to Appeal (Crl.) No(s). 8740/2024], decided on 26.07.2024. 2. Abhishek Singhal Vs. Union of India (S.B. Criminal Misc. Second Bail Application No. 14211/2011), decided on 11.11.2021. 3. Babulal Qazi Vs. Union of India (S.B. Criminal Misc. Bail Application No. 12786/2022), decided on 13.02.2023. 4. C. Pradeep Vs. The Commissioner of GST and Central Excise Selam Anr. [Petition (s) for Special Leave to Appeal (Crl.) No(s). 6834/2019], decided on 06.08.2019. 5. Gaurav Singhal Vs. Union of India, reported in (2024) 19 Centax 479 (All.), decided on 29.05.2024. 6. Laxman Chaudhary Vs. Union of India (S.B. Criminal Misc. Bail Application No. 16422/2021), decided on 06.10.2021. 7. Manish Sisodia Vs. Directorate of Enforcement (MANU/SC/0861/2024), decided on 09.08.2024. 8. Mohd. Shadab Kadri Vs. Union of India (S.B. Criminal Misc. Bail Application No. 2299/2022), decided on 06.04.2023. 9. Nikhil Gupta Vs. Union of India along with connected matter (S.B. Criminal Misc. Second Bail Application No. 17510/2022). 10. P. Chidambaram Vs. Directorate of Enforcement (MANU/SC/1670/2019), decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from him 294 fake firms. Sh. Ashutosh Garg was arrested on 02.11.2023. Learned PP also submits that the petitioner voluntarily accompanied Sh. Sanket Gupta, Accountant of Sh. Ashutosh Garg, when Sh. Sanket Gupta was summoned by his office. Accordingly, the petitioner was summoned by SIO on 17.11.2023 and his statement was recorded on the very same day. During statement the accused petitioner stated that he used to work as broker for cash withdrawal from RTGS done by fake firm handlers. Sh. Ashutosh Garg used to issue fake invoices form his firms and when he needed to withdraw cash from his fame firm's accounts, he used to contact the petitioner, who then arranged importer's account numbers, to which Sh. Ashutosh Garg sent RTGS and took cash from the importer. The petitioner used to charge 10% commission on the said transactions. Thus, the accused petitioner has accepted that he was involved in managing RTGS and cash for fake firms of Sh. Ashutosh Garg. Learned Special PP further submits that during the statement, the accused petitioner requested that he was feeling tired, therefore another summons dated 17.11.2023 was issued by SIO to appear on 18.11.2023. The petitioner ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s photo was same but person name, Aadhar number, PAN number were different. Learned Special PP further submits that the statements of accomplices of the petitioner i.e. Ravi Kumar, Sh. Jatin Gupta were recorded wherein they have stated that the petitioner is involved in creation and operation of various fake firms. Various summons have also been issued to other persons i.e. Sh. Manish Tayal, Smt. Shalini Tayal wife of Sh. Manish Tayal, Sh. Om Prakash Jha, Smt. Kiran wife of Sh. Ravi Kumar involved in the case but they have not appeared to tender their statement till date. Learned Special PP in support of his submissions placed reliance upon following judgments:- 1. Anil Kumar Vs. Union of India (S.B.. CMBA No. 6318/2024), decided on 31.07.2024. 2. Sh. Ashish Goyal Vs. Union of India (S.B. Criminal Misc. Bail Application No. 4376/2024), decided on 12.09.2024. 3. Vishal Agarwal Vs. Union of India (S.B. Criminal Misc. Bail Application No. 4259/2024), decided on 12.09.2024. 4. Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pallu Yadav Anr., reported in (2004) 7 Supreme Court Cases 528, decided on 12.03.2004. 5. Prahlad Singh Bhati Vs. NCT, Delhi Anr., reported in (2001) 4 Supreme Court Case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r services or both in violation of the provisions of this Act, or the rules made thereunder leading to wrongful availment or utilisation of input tax credit or refund of tax; (c) avails input tax credit using the invoice or bill referred to in clause (b) or fraudulently avails input tax credit without any invoice or bill;] (d) collects any amount as tax but fails to pay the same to the Government beyond a period of three months from the date on which such payment becomes due; (e) evades tax 3 [****] or fraudulently obtains refund and where such offence is not covered under clauses (a) to (d); (f) falsifies or substitutes financial records or produces fake accounts or documents or furnishes any false information with an intention to evade payment of tax due under this Act; (g) obstructs or prevents any officer in the discharge of his duties under this Act; (h) acquires possession of, or in any way concerns himself in transporting, removing, depositing, keeping, concealing, supplying, or purchasing or in any other manner deals with, any goods which he knows or has reasons to believe are liable to confiscation under this Act or the rules made thereunder; (i) receives or is in any way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l offences under this Act, except the offences referred to in sub-section (5) shall be non- cognizable and bailable. (5) The offences specified in clause (a) or clause (b) or clause (c) or clause (d) of sub-section (1) and punishable under clause (i) of that sub-section shall be cognizable and non-bailable. (6) A person shall not be prosecuted for any offence under this section except with the previous sanction of the Commissioner. Explanation .- For the purposes of this section, the term tax shall include the amount of tax evaded or the amount of input tax credit wrongly availed or utilised or refund wrongly taken under the provisions of this Act, the State Goods and Services Tax Act, the Integrated Goods and Services Tax Act or the Union Territory Goods and Services Tax Act and cess levied under the Goods and Services Tax (Compensation to States) Act. 17. The offence in regard to preparation of forged documents is not covered under section 132 of the Act of 2017. In view of the provisions of Section 132 of the Act of 2017, the only allegation levelled against the accused petitioner is that he issued fake invoices in the names of fake firms without there-being actual transactions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The amount of alleged input tax credit wherein Mr. Ashutosh Garg is found involved, is more than the alleged input tax credit. Mr. Ashutosh Garg has been ordered to be released on bail by the Hon ble Apex Court vide order dated 26.07.2024 in case of Ashutosh Garg(supra). 23. The maximum punishment for the offence alleged against the accused petitioner is five years and presently the accused petitioner has already suffered the custody of five months. 24. The alleged offences, as per the provisions of law, are compoundable. 25. Learned Special PP has also shown his apprehension that if the accused petitioner is released on bail, he may influence or temper with the prosecution witnesses. The complaint has already been submitted qua the accused petitioner wherein there are only five prosecution witnesses, as per the list of witnesses and they all are the Officers of the Department. It is unfortunate that the Department itself is apprehending the influence of the accused petitioner over their own Officers. There is no evidence on record to substantiate their apprehension and also the dignity and honesty of the Officers of the Department cannot be questioned and that too by the Depart ..... X X X X Extracts X X X X X X X X Extracts X X X X
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