TMI Blog2021 (2) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... case in hand, bills were being procured from the firms based at Delhi who had no purchases. The tax which was not deposited for these transaction was utilized by the firms for not only availing ITCs but for getting the refunds by showing the sales to export units. In other words, the refund was received for the tax which was actually never received by the Revenue. The factual error pointed out in impugned order cannot in itself be a reason for allowing the prayer. The Court below had given other reasons also for denying the bail. While deciding the present petition, the facts have been re-considered and this court has reached the same conclusion that the prayer of petitioner for grant of bail is liable to be rejected - Petition dismissed. - CRM-M-1511-2021 - - - Dated:- 28-1-2021 - Hon'ble Mr. Justice Avneesh Jhingan For the Petitioner : Mr. Ashok Aggarwal, Senior Advocate with Mr. Priyadarshi Manish, Advocate, Mr. Gaurav Garg Dhuriwala, Senior Deputy Advocate General, Punjab. For the Union of India : Mr. Sourabh Goel, Senior Panel Counsel ORDER AVNEESH JHINGAN, J. [1] The matter is taken up for hearing through video conference due to COVID-19 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... However, in his mobile, an e-mail I.D. i.e. bhagwati_rk@yahoo.co.in was found logged in. From this I.D. lease deed of M/s La Mode Fashions was sent to an e-mail I.D. i.e. t.tarun2003@gmail.com, which was the alternative e-mail I.D. provided in the GSTIN portal of the above said firms. As the investigation proceeded, one Tarun came into picture who was running a Cyber Cafe and had confessed of creating fake identities for partners of the firms such as Aadhaar Card, PAN, Bank accounts etc. He provided two of his employees for being partner in firms. Identity of one employee was changed from Rajesh to Ajay Gupta. In his statement, he stated that petitioner was making monthly payments to him and his employees for their assistance being lend to the petitioner. The case set up is that the petitioner was actively involved in creating three bogus firms and for availing fraudulent ITC. The statement of various persons including Ms. Shreya Aggarwal (partner) and land lady of premises taken on rent for firms, were recorded. All of these pointed towards the fact that petitioner was Dharminder Arora @ Raja Bhaiya who either himself or through someone had contacted them in furtherance of creati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India contended that scam of more than ₹ 150 crores came to light as result of information collected by BIFA software. He refuted the contention that if bail is granted, the petitioner is not likely to flee. It is submitted that the petitioner had changed his identity. It was only during investigation when certain documents were found that he could be identified and arrested. It is argued that the petitioner if granted bail would tamper with the evidence and shall be in a position to influence the witness. The contention is fortified by relying upon the statement of Tarun to the effect that petitioner took him forcibly in his Car to a farm house in Ludhiana and was detained there till ₹ 68 lakhs were transferred from the account of Saroj Bala to M/s Decent Fashions. [13] He relied upon contents of various statements recorded to show that the petitioner impersonated as Dharminder Arora @ Raja Bhaiya for establishing bogus firms for claiming fake ITC. He vehemently argues that a letter written by Rakesh Kumar (partner) stating that they were working for petitioner and it would be his responsibility if anything goes wrong, was recovered from e-mail of the petitioner. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed behind the smoked screen by withholding his identity as well as true identities of partners of the firms cannot be ignored. It emerged from the material collected during investigation that petitioner is Dharminder Arora @ Raja Bhaiya. To state that such a person if granted bail will not flee or abscond is a risky proposition to be accepted. [22] The compliance, registration etc., under the Act and most of the evidence is either through electronic medium or online and IDs were created for the said purpose. If petitioner gets opportunity, he would be in a position to tamper with the evidence. It cannot be lost sight of that it was petitioner who engaged persons and assigned them respective roles and he would be in a position to influence the witness. [23] The petitioner pressed into service the order of Delhi Court in Anil Jain s case (supra) . The Court there came to the conclusion that no custodial interrogation was required and petitioner will not flee if bail is granted. Whereas in the present case, the investigation is going on and fresh information is pouring in. Petitioner would be in a position to not only tamper with the evidence but to influence the witnesses al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is of no avail to the petitioner. It was held that power of arrest under Section 69 read with Section 132 of the Act can be invoked before completion of adjudication of process. The prerequisite being that Commissioner has reasons to believe that person had committed offence under clauses (a) to (d) of sub clause (1) of Section 132 of the Act. In case in hand reasons were recorded for arresting the petitioner. [28] The bail cannot be granted solely on the ground that vires of Section 132 and 69 of the Act are under challenge. There is always presumption of validity of the provision. The operation of the provisions has not been stayed. [29] In case of Manoj Cables Limited (supra), only an interim bail was granted due to COVID-19 situation. In Tarun Bassi s case (supra), the allegations were only for availing ITC without supplying the goods. In Rajinder Bassi s case (supra) and Ganga Ram s case (supra) , the Court granted bail considering the custody period of 9 and 4 months respectively whereas allegations here are serious and matter is still being investigated. [30] It was argued that the Court below wrongly recorded that ₹ 68 lakhs were tra ..... 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