PUNISHMENT UNDER SECTION 132

[Sadanand Bulbule]

Dear all

Under Section 132 of the GST Act, whoever commits or causes to commit and retain the benefits arising out of any of the offences mentioned therein, they can be punished with imprisonment for up to five years and a fine.

So the query is, to determine the quantum of actual evasion of tax to co-relate the quantum of punishment of imprisonment under Section 132, whether prior adjudication under Section 74 is mandatory for determination of tax not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilised by reason of fraud or any wilfull-misstatement or suppression of facts.? If yes,

The supplementary questions are like this:

From the date of arrest of the accused under Section 69[1] for the offence/s under Section 132, the charge-sheet shall be filed within sixty [60] days in the designated judicial Court for trail. Whereas in terms of Section 74[2], the proper officer shall issue the notice under sub-section (1) at least six months prior to the time limit specified in sub-section (10) for issuance of order which reads asunder:

Section 74[10]. The proper officer shall issue the order under sub-section (9) within a period of five years from the due date for furnishing of annual return for the financial year to which the tax not paid or short paid or input tax credit wrongly availed or utilised relates to or within five years from the date of erroneous refund.

Experts to pour their thoughts as regards to how these requirements sound well?

AI Summary

Criminal liability for GST evasion requires prior adjudication of tax liability before prosecution under penal provisions.
Whether prosecution under Section 132 may proceed before adjudication under Section 74 is queried: the issue concerns whether prior administrative determination of tax not paid, short paid, erroneously refunded or wrongly availed input tax credit is required to establish the quantum of evasion for criminal liability. The discussion highlights the conflict between the criminal charge-sheet timeline post-arrest and the longer statutory window for issuance of adjudication orders, and notes CBIC prosecutorial and arrest-and-bail guidelines emphasising adherence to adjudicatory principles.