TMI Blog2023 (1) TMI 1361X X X X Extracts X X X X X X X X Extracts X X X X ..... igation may take some time. That of the 151 taxpayers, the petitioner being consultant of 122 tax payers, his presence for investigation also would be required in respect of each of the tax payers case is concerned. Petition disposed off. - HON BLE SRI JUSTICE P. SAM KOSHY AND HON BLE SRI JUSTICE N. TUKARAMJI For the Petitioner : Mr. Rapolu Bhaskar, Learned Counsel. For the Respondent Nos. 1, 2 and 3. : Mr. B. Mukerjee, Learned Senior Counsel representing Mr. Gadi Praveen Kumar, Learned Deputy Solicitor General of India Appearing for respondent No. 1 and Mr. Dominic Fernandez, Learned Senior Standing Counsel for CBIC appearing for respondent Nos. 2 and 3. ORDER: (PER HON BLE SRI JUSTICE P.SAM KOSHY) Heard Mr. Rapolu Bhaskar, learned counsel for the petitioner; Mr. B. Mukerjee, learned Senior Counsel representing Mr. Gadi Praveen Kumar, learned Deputy Solicitor General of India appearing for respondent No. 1 and Mr. Dominic Fernandez, learned Senior Standing Counsel for CBIC appearing for respondent Nos. 2 and 3. Perused the entire record. 2. The instant writ petition has been filed seeking for issuance of Writ of Mandamus in the nature of restraint order to respondent No. 3 to no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which have been issued to the petitioner. The contention of the learned counsel for the Department is that the present writ petition has been filed in the garb of claiming for an anticipatory bail. Learned counsel further contented that the petitioner is a consultant to about 122 companies, who are taxpayers and for these companies, it is the petitioner in the capacity of an Accountant, who furnishes returns, uploads the GST returns as also the invoices passing on the input tax credit. Learned counsel further submits that in the course of investigation, it has been revealed that many of these invoices which have been passed in respect of the input tax credit by the petitioner was even without the knowledge of the taxpayers at all. There are around 18 taxpayers whose statements have been recorded and all of them have expressed their ignorance so far as their involvement in passing of the input tax credit is concerned. Further, they have made specific allegations against the petitioner who is said to have done the same. 7. Learned counsel for the Department further referred to the statement recorded by one Shaik Ajmal, who in his statement stated that the petitioner herein is his bus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, this is exactly what the respondents did in the present case. What the respondents sought by filing two criminal applications under Article 226 of the Constitution before the High Court was the direction to the appellant herein not to arrest them in exercise of the power conferred by Section 69(1) of the GST Act, 2017. This, in essence, is key to prayer for anticipatory bail. However, as we have explained aforesaid, at the stage of summons, the person summoned cannot invoke Section 438 of the Code of Criminal Procedure. 17. This Court in Kartar Singh Vs. State of Punjab, (1994) 3 SCC 569 , has, in no uncertain terms, observed that a claim for prearrest protection is neither a statutory right nor a right guaranteed under Articles 14, 19 and 21 reply of the Constitution of India. Although the Constitution Bench of this Court held that there is no bar for the High Court to entertain an application for pre-arrest protection under Article 226 of the Constitution of India, yet it was held that such power should be exercised sparingly. There is a fundamental distinction between a petition for anticipatory bail and the writ of mandamus directing an officer not to effect arrest. A writ o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It would be relevant at this juncture also to take note of the observations made by the Hon ble Supreme Court in the case of Poolpandi and others Vs. Superintendent, Central Excise and others 1992 3 SCC 259, wherein, in Paragraph No. 11, the Hon ble Supreme Court, dealing with the provisions of the Customs Act, held as under: The argument proceeds thus: if the person who is used to certain comforts and convenience is asked to come by himself to the Department for answering question it amounts to mental torture. We are unable to agree. It is true that large majority of persons connected with illegal trade and evasion of taxes and duties are in a position to afford luxuries on lavish scale of which an honest ordinary citizen of this country cannot dream of and they are surrounded by persons similarly involved either directly or indirectly in such pursuits. But that cannot be a ground for holding that he has a constitutional right to claim similar luxuries and company of his choice. Mr. Salve was fair enough not to pursue his argument with reference to the comfort part, but continued to maintain that the appellant is entitled to the company of his choice during the questioning. The p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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