2025 (5) TMI 793 - HC - GST

Seeking grant of pre-arrest bail - availment of ITC through fake GST invoices without any actual receipt or supply of goods/services - HELD THAT - From perusal of extract produced prima facie it is evident that petitioner is the proprietor of M/s Kashbhi Accessories Point. Apart that petitioner was granted interim protection by the Co-ordinate Bench on 09.04.2025 but despite three notices (prior to the interim order) and one subsequent thereto he did not come forward; rather his whereabouts are not known. Thus petitioner is evading the process of law and misusing the interim concession; hence he does not deserves the concession of pre-arrest bail. Petition dismissed.

Summary

1. ISSUES PRESENTED and CONSIDERED

- Whether the petitioner, as proprietor of M/s Kashbhi Accessories Point, is entitled to pre-arrest bail under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) in the alleged offence under Sections 132(1)(b) and 132(1)(c) of the Central Goods and Service Tax Act, 2017 (CGST Act) read with Punjab GST Act, 2017, for wrongful availment of Input Tax Credit (ITC) through fake invoices?

- Whether the petitioner has evaded the process of law and misused interim protection granted earlier, thereby disentitling him from the concession of pre-arrest bail?

- Whether custodial investigation of the petitioner is necessary to unearth the true facts of the alleged crime?

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Entitlement to Pre-Arrest Bail under Section 482 BNSS for Alleged Wrongful Availment of ITC

Relevant Legal Framework and Precedents: The provisions of Section 482 BNSS empower the High Court to exercise inherent powers to prevent abuse of the process of any court or to secure the ends of justice. Sections 132(1)(b) and 132(1)(c) of the CGST Act criminalize wrongful availment or utilization of ITC by means of fraud or issuance of fake invoices. The Punjab GST Act, 2017 supplements the CGST Act for the state jurisdiction.

Court's Interpretation and Reasoning: The Court noted that the petitioner was the sole proprietor of M/s Kashbhi Accessories Point and was alleged to have availed ITC amounting to Rs. 1.60 Crore through fake invoices without actual receipt or supply of goods/services. The respondent-department's submissions detailed multiple suppliers whose GST registrations were found to be obtained by fraud, wilful misstatement, or suppression of facts, and many of these suppliers were non-existent at their declared principal places of business (PPOB). The total ineligible ITC availed was approximately Rs. 1.62 Crore, corroborating the allegations.

Key Evidence and Findings: The department's table of suppliers, along with reasons for cancellation or remarks, established a prima facie case of fraudulent availment of ITC. Several suppliers were found non-existent, registrations were cancelled under Section 29(2)(e) of the CGST Act for fraud or misstatement, and physical verifications revealed discrepancies. The petitioner's firm was thus implicated in receiving ineligible ITC from these fraudulent suppliers.

Application of Law to Facts: Given the prima facie evidence of fraudulent ITC availment and the petitioner's proprietorship status, the Court found that the allegations were substantial and fell within the scope of Sections 132(1)(b) and 132(1)(c) of the CGST Act. The petitioner's claim of being a sleeping partner was not supported by the record, which identified him as the sole proprietor.

Treatment of Competing Arguments: The petitioner contended that he was falsely implicated, was a sleeping partner, and not engaged in day-to-day business activities, with co-accused managing operations. He also relied on interim protection granted earlier. The respondent countered that the petitioner deliberately evaded investigation despite multiple notices and that custodial interrogation was necessary. The Court gave significant weight to the department's evidence and the petitioner's non-cooperation.

Conclusion: The Court held that the petitioner, as proprietor, was prima facie involved in the wrongful availment of ITC and was not entitled to pre-arrest bail on this ground.

Issue 2: Petitioner's Evasion of Process of Law and Misuse of Interim Protection

Relevant Legal Framework: The Court's inherent power under Section 482 BNSS includes ensuring that interim reliefs are not misused and that accused persons cooperate with investigation. Non-compliance with notices and evasion of investigation are relevant considerations in bail applications.

Court's Interpretation and Reasoning: The Court observed that despite four repeated notices (three before and one after interim protection), the petitioner did not join the investigation and his whereabouts remained unknown. This conduct amounted to evasion of the process of law and misuse of the interim protection granted by the Co-ordinate Bench on 09.04.2025.

Key Evidence and Findings: The record showed non-appearance despite notices. The petitioner's failure to cooperate was viewed as deliberate and obstructive.

Application of Law to Facts: The Court emphasized that such conduct disentitles the petitioner from the concession of pre-arrest bail, as it impedes the investigation and judicial process.

Treatment of Competing Arguments: The petitioner's readiness to join proceedings was contradicted by his actual non-appearance and evasion. The Court rejected the petitioner's claim of innocence based on this conduct.

Conclusion: The Court concluded that the petitioner's evasion and misuse of interim protection warranted dismissal of the bail plea.

Issue 3: Necessity of Custodial Investigation

Relevant Legal Framework: Custodial interrogation is permitted under the GST laws when required to uncover the truth in complex fraud cases involving elaborate schemes of fake invoices and ITC misuse.

Court's Interpretation and Reasoning: The respondent-department submitted that custodial investigation was necessary to unearth the true facts. Given the scale of alleged fraud and non-cooperation of the petitioner, the Court found this submission reasonable.

Key Evidence and Findings: The extensive list of fraudulent suppliers and the petitioner's evasion supported the need for custodial interrogation.

Application of Law to Facts: The Court recognized the gravity of the offence and the importance of custodial investigation for effective prosecution.

Treatment of Competing Arguments: The petitioner did not specifically contest the necessity of custodial investigation but sought bail to avoid arrest. The Court prioritized the investigation's integrity over the petitioner's convenience.

Conclusion: Custodial investigation was deemed necessary, further negating the petitioner's entitlement to pre-arrest bail.

3. SIGNIFICANT HOLDINGS

- "Prima facie, it is evident that petitioner is the proprietor of M/s Kashbhi Accessories Point."

- "Despite three notices (prior to the interim order) and one subsequent thereto, he did not come forward; rather his whereabouts are not known. Thus, petitioner is evading the process of law and misusing the interim concession; hence he does not deserve the concession of pre-arrest bail."

- "The proprietorship firm of the petitioner was indulged in wrongful availment/utilization of fraudulent ITC in violations of the provisions of the CGST Act, 2017 and Punjab GST Act, 2017 and Rules made thereunder."

- "There is no option except to dismiss the petition."

- The Court clarified that "above observations be not construed as an expression of opinion on merits of the case in any manner."

Core principles established include the recognition that proprietorship status entails responsibility for wrongful availment of ITC, non-cooperation with investigation and evasion of process disentitle an accused from pre-arrest bail, and custodial investigation is justified in complex GST fraud cases. The Court emphasized that interim protection must not be misused to evade legal processes.

Final determinations were that the petitioner was not entitled to pre-arrest bail, the petition was dismissed, and pending applications were disposed of accordingly.