TaxTMI 
TaxTMI 
TaxTMI 
2021 (3) TMI 346
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....dulent ITC and the amount of Rs. 54.53 crores which has been shown as passed on amount of ITC, the accused cannot be said to be liable for the entire amount. The difference of ITC availed and ITC passed on by the accused is merely 3 crores and out of which accused has already deposited a sum of Rs. 1,13,83,699/- by way of GST reversal form during the period w.e.f. 29.11.2019 to 14.02.2021. Therefore, in accordance with the provision of section 132 of GST Act 2017, the liability of accused is less than Rs. 5 crores therefore, in terms of section 132(5) of the CGST Act, the offence is bailable and accused has been wrongly arrested in this case. It is further contended by the Ld. Counsel that in accordance of section 132 of GST Act 2017 and t....
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....usions in this judgment:" It is further submitted by the Ld. Counsel that accused has already retracted his statement recorded by the complainant/department and accused has not retained any benefit of ITC to attract the provision of section 132 GST Act against him. His role has been shown merely of a conduit who passed on the ITC to the other firms in the long chain of transactions between several firms. Bail is also prayed on the ground that accused is having responsibility of his old aged parents and accused himself is old aged person aged around 60 years, suffering from various ailments like hypertension and severe diabetes. It is further contended that complainant has failed to show any loss to the government exchequer infact during th....
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.... also passed on ineligible ITC of Rs. 54.53 crores through his both above named firms. It is also alleged that all the major supplier of these two firms were also non existent and were bogus firms. Therefore, it is alleged that the firms of the accused was one of the constituent in the entire chain of passing on of ineligible ITC wherein the firms of the accused were found purchasing and selling only paper invoices without there being any supply of goods in order to avail and pass of ineligible fraudulent ITC. On being inquired from the Ld. SPP for the Department about the adjudication and fixing the liability of the accused, it is submitted that adjudication in this case is yet to be initiated and the applicant has been one of the constit....
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....HARYANA HIGH COURT. In this judgement Hon'ble High Court has also held that "the opinion expressed by the Hon'ble Telangana High Court cannot be made applicable in each and every case and can not be treated as an authority to conclude that the DGGI has power to arrest in every case during investigation and that too without determination of tax evaded as well finding that accused has committed an offence described u/s 132 of GST Act 2017". Reliance is also placed upon Jaya Chandran alloys (P) Ltd. v. Superrintendent of GST & C. ex., salem (Writ Petition No.5501 of 2019 and W.M.P No.6251 of 2019 = 2019 (5) TMI 895 - MADRAS HIGH COURT wherein it was held as under:" "38. Thus, 'determination' of the excess credit by way of the proce....
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....ment under 132 and this action is contrary to the scheme of the Act. While the activities of an assessee contrary to the scheme of the Act are liable to be addressed swiftly and effectively by the Department, (the statute in question being a revenue statute where strict interpretation is the norm), officials cannot be seen to be acting in excess of the authority vested in them under the statute. I am of the considered view that the power to punish set out in section 132 of the Act would stand triggered only once it is established that an assessee has 'committed' an offence that has to necessarily be post-determination of the demand due from an assessee, that itself has to necessarily follow the process of an assessment. 40............... ....