TaxTMI 
TaxTMI 
2025 (1) TMI 400
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....nce punishable under section (c), (f), (l) of the Act of 2017 on the basis of statement of one Ashutosh Gupta recorded under section 70 of the Act of 2017 wherein it has been stated that the accused petitioner has created fake firms and has issued goods/ invoices and has pass on the input tax credit which is prescribed under section 16 of the Act of 2017, and therefore, the contravention of said provision is an offence under section 132 of the Act of 2017. 3. During the course of investigation, notice was issued to the accused petitioner for recording his statement and also to submit the documents under the provision of section 70 of the Act of 2017. 4. The complaint was filed under section 190 of the Code of Criminal Procedure, 1973 for offences punishable under sections 174 and 175 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 U....
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....is said to have found that the accused petitioner issued fake invoices without actual transfer of goods so as to pass on the inputs tax credit and for that purpose he has created 49 fake firms. It is also alleged that on the basis of the investigation and statements of certain witnesses given voluntarily, the allegations against the accused petitioner for the offence under section 132(1)(b)(c) (f)(l) of the Act of 2017 is found proved and the said offence is cognizable and non-bailable one with the averments that the accused petitioner has evaded GST amounting to Rs. 215.67 crores. 9. Learned counsel appearing for the accused petitioner submits that the complaint against the accused petitioner was filed on 20.06.2024 and investigation was commenced on 16.11.2023. He further submitted that the accused 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'....
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....it. Counsel also submits that the private persons, whose statements were recorded were not made witnesses in the complaint dated 20.06.2024 and DGGI cannot repy upon them and also the vediography of the statements relied upon was not made. Counsel also submits that the aadhar cards, PAN cards and cheque books & digital signatures were recovered from the PG accommodation and not from the residential premises which were also not made part of the complainant. Counsel also submits that there is no any case pending against the accused petitioner, specially any PMLA matter. Counsel further submits that the trial of the case has not even started and it may take long time, therefore the accused petitioner may be released on bail. 10. In support of his submissions, counsel appearing for the accused petitioner has placed 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....
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.... Prosecutor while opposing the submissions of learned counsel for the accused petitioner submits that the petitioner and Sh. Anil Kumar are the key person in the matter and they have purchased and operated some of the fake firms from Sh. Ashutosh Garg. They are also running their own syndicate of fake firms. Sh. Sanket Gupta, accountant of Sh. Ashutosh Garg has stated in his statements dated 16.311.2023 and 17.11.2023 that date found in "Pankaj bhaiya ledger" folder in laptop of Sh. Ashutosh Garg recovered from the premises of Sh. Sanket Gupta, Accountant of Sh. Ashutosh Garg, belong to the accused petitioner whose mobile No. is 99991xxxxx. The accused petitioner has been examined and it was found to contain large number of firms who have purchased bills from fake firms operated by Sh. Ashutosh Garg. Learned Special PP further submits that Sh. Ashutosh Garg admitted to issuing fake invoices from 294 fake firms being run by him. Sh. Ashutosh Garg admitted to passing on fake ITC of about 1032 Crore 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 G....
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.... firms are said to be fake firms which were created and managed by accused petitioner. It was also observed that Sh. Ravi Kumar and Sh. Manish Tayal are the key persons/accomplices of the petitioner for operating/managing the fake firms. It was also observed that Sh. Ravi Kumar is director/authorized signatory/proprietor in 11 of these firms and Sh. Manish Tayal is director/authorized signatory/proprietor in 6 of these firms. Learned Special PP further submits that during search at the office premises of the petitioner, it revealed that the said premises was owned by Sh. Hari Prakash Aggarwal, father of the petitioner. Some more documents of fake firms were also seized from the said premises, which were found in the WhatsApp chats of Sh. Pankaj Aggarwal which corroborate the fact that Sh. Pankaj Aggarwal was running his fake firms racket from the said premises. On perusal of the said documents, it was observed that the said documents were fabricated as in the various PAN Cards and Aadhar cards, holder'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....
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....ke companies and has also borrowed some fake companies from Mr. Ashutosh Garg in the names of non-existing persons, got registered with the forged identity documents and thereafter issued fake invoices said to have been issued in the names of such fake firms so as to pass on the input tax credit which is to be claimed by a person or firm in whose favour such fake invoices have been generated without there-being any actual transaction of goods or service. It is also submitted that several forged documents have been recovered from the premises of the petitioner including forged Aadhar Cards and PAN Cards in the names of the non-existing persons. 16. Section 132 of the Act of 2017 reads as under:- "Section 132. Punishment for certain offences.- (1) 1 [Whoever commits, or causes to commit and retain the benefits arising out of, any of the following offences], namely:- (a) supplies any goods or services or both without issue of any invoice, in violation of the provisions of this Act or the rules made thereunder, with the intention to evade tax; (b) issues any invoice or bill without supply of goods or services or both in violation of the provisions....
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.... hundred lakh rupees, with imprisonment for a term which may extend to three years and with fine; (iii) in the case of any other offence where the amount of tax evaded or the amount of input tax credit wrongly availed or utilised or the amount of refund wrongly taken exceeds one hundred lakh rupees but does not exceed two hundred lakh rupees, with imprisonment for a term which may extend to one year and with fine; (iv) in cases where he commits or abets the commission of an offence specified in clause (f) or clause (g) or clause (j), he shall be punishable with imprisonment for a term which may extend to six months or with fine or with both. (2) Where any person convicted of an offence under this section is again convicted of an offence under this section, then, he shall be punishable for the second and for every subsequent offence with imprisonment for a term which may extend to five years and with fine. (3) The imprisonment referred to in clauses (i), (ii) and (iii) of sub-section (1) and sub-section (2) shall, in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the Court, be for a term not less than....
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....nstructions 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. 20. After completion of investigation, the complaint has already been submitted against the petitioner on the basis of evidence collected during the investigation. Learned Special PP also submitted that the evidence as regards the other co- accused and the details about the beneficiaries of ITC is still under investigation and the same shall be submitted before the competent Court. 21. 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. 22. Learned Special PP has also relied upon various judgments wherein the alleged input tax credit is less than the input tax credit of this case, in those cases the bail applications of the accused therein were rejected. The present case was registered on the basis of statement of....