CHARGE SHEET UNDER SECTION 132.

[Sadanand Bulbule]

Dear all

Plz refer Para No 38 of the Hon'ble Madras High Court judgement reported in 2019 (5) TMI 895, which reads as under:

38. Thus, ‘determination’ of the excess credit by way of the procedure set out in Section 73 or 74, as the case may be is a prerequisite for the recovery thereof. Sections 73 and 74 deal with assessments and as such it is clear and unambiguous that such recovery can only be initiated once the amount of excess credit has been quantified and determined in an assessment. When recovery is made subject to ‘determination’ in an assessment, the argument of the department that punishment for the offence alleged can be imposed even prior to such assessment, is clearly incorrect and amounts to putting the cart before the horse.38. Thus, ‘determination’ of the excess credit by way of the procedure set out in Section 73 or 74, as the case may be is a prerequisite for the recovery thereof. Sections 73 and 74 deal with assessments and as such it is clear and unambiguous that such recovery can only be initiated once the amount of excess credit has been quantified and determined in an assessment. When recovery is made subject to ‘determination’ in an assessment, the argument of the department that punishment for the offence alleged can be imposed even prior to such assessment, is clearly incorrect and amounts to putting the cart before the horse.

Query:

In the light of the above ruling, can a charge-sheet still be filed under Section 132[1][i] for the offences classified under Section 132[1] [b] & [c] without/before determination of tax evaded under Section 74?

Assuming it is filed without adjudication under Section 74, is it tenable during trial in the court of law?

Experts to throw light with more case laws.

AI Summary

Retention of Input Tax Credit: prosecution under GST requires prior adjudication and quantification of the evaded tax
Prior adjudication and quantification of the tax evaded or input tax credit wrongly availed is a substantive precondition to initiating prosecution in many instances; criminal liability principally attaches to those who retain and utilise the benefit of wrongfully availed ITC, whereas issuers of invoices without supply who do not retain benefit are ordinarily subject to civil adjudication and specified penalties. Investigations, show cause notices, arrests and charge sheets must rest on independent satisfaction of the proper officer and sufficient evidence of mens rea and retention of benefit, failing which proceedings risk being invalidated.