TMI Blog2021 (3) TMI 346X X X X Extracts X X X X X X X X Extracts X X X X ..... s not averred, no reasonable apprehension of tampering with the evidence or hampering the investigation has been shown, accused is no more required for any custodial investigation, therefore, no purpose would be served to keep the accused behind bar. Considering all the facts and circumstances accused Mohinder Kumar be released on bail on furnishing personal bond in the sum of ₹ 5 lacs with one surety in the like amount to the satisfaction of Ld. MM/Duty MM concerned subject to the conditions imposed - application disposed off. - Application No. 500/2021 - - - Dated:- 6-3-2021 - SH. SANJAY KHANAGWAL ADDITIONAL SESSIONS JUDG, SPECIAL/FAST TRACK COURT PATIALA HOUSE COURTS NEW, DELHI ORDER This is an application u/s 439 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 (44) STR 481 (DELHI) = 2016 (9) TMI 52 - DELHI HIGH COURT and Raghav Aggarwal v. Commissioner of central Tax and GST Delhi North (Bail application No.4019/2020) = 2020 (12) TMI 940 - DELHI HIGH COURT , adjudication of the liability has not been carried out by the department till date, therefore, its liability cannot be fixed and the amount which has been alleged by the prosecution is without any verifiable material. Ld. Counsel placed reliance upon Akhil Krishan Maggu and Anr. v. Dy. Director of DGGI others in CWP No.24195 of 2019 = 2019 (11) TMI 942 - PUNJAB AND HARYANA HIGH COURT wherein it was held that :- 7. Before adverting to present controversy, it would be profitable to look at judicial pronouncements relating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ins to cases of sales tax and the present case is regarding evasion of GST by the accused through his firms. It is further contended that in terms of the judgement of Hon'ble High Court of Telangana in case titled as CV Rammana Reddy v. Union of India = 2019 (4) TMI 1320 - TELANGANA AND ANDHRA PRADESH HIGH COURT , the adjudication is not required for the purpose of initiating the prosecution in GST cases. Ld. Counsel for the complainant has also placed reliance upon the judgement of Sapna Jain Others v. Union of India = 2019 (5) TMI 1610 - BOMBAY HIGH COURT in support of his arguments. Ld. SPP further pleaded that section 69 of the GST Act which gives Commissioner the power to arrest if he has reason to believe that offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing on ₹ 54.53 crores is stated to be the entire amount which has been passed through the entire transaction between the firm of the accused and the firms from which accused had received the ITC and the firms to which he further passed on the ineligible ITC. Therefore, from the reply and the averments of the Ld. Counsel for the department it could not be revealed that what is the exact amount which went into the pocket of the accused as fraudulent ITC. There has been allegation that accused has evaded the tax and caused loss to the exchequer but on being inquired from Ld. SPP he submitted that there has not been any calculation with respect to the exact loss to the exchequer during the entire availment and passing on the input tax c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 39. The exceptions to this rule of assessment are only those cases where the assessee is a habitual offender, that/who has been visited consistently and often with penalties and fines for contraventions of statutory provisions. It is only in such cases that the authorities might be justified in proceedings to pre-empt the assessment and initiate action against the assessee in terms of se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t such action, as in the present case, would amount to a violation of Constitutional rights of the petitioner that cannot be countenanced. In accordance with the observation of Hon'ble High Court in above mentioned and also in make my trip case, there has not been any allegation that he has been habitual evader of the GST, adjudication in the present case is yet to be carried out in order to fix the exact liability of the accused. He is already in custody since 13.02.2021, accused is stated to be an old aged person of 60 years suffering from several ailments, who is also having the responsibility of taking care of his old parents. The reversal deposit of the amount which has not been disputed by the Ld. SPP for the department. Dete ..... X X X X Extracts X X X X X X X X Extracts X X X X
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