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TMI Blog2024 (8) TMI 1442X X X X Extracts X X X X X X X X Extracts X X X X ..... of respondent Gautam Garg was not recorded under normal circumstances; there was no evidence that Gautam Garg is a Manager in Firm M/s Gurbax Rai Cotton Industries, M/s Gurbax Rai & Sons and M/s Gurbax Rai Praveen Kumar. No electronic evidence was found on the residential premises of Gautam Garg; the department could not produce the reasons for believing in the arrest of Gautam Garg. The State Goods and Services Tax Department of Rajasthan has issued a summons to Gautam Garg. Two proceedings cannot run simultaneously. Lastly, the evasion of Goods and Services Tax (from now on referred to as 'GST') is only Rs. 7.48 crores. After relying upon the judgment of Hon'ble Allahabad High Court, the Court below allowed the bail application of Gautam Garg. 3. Learned counsel for the petitioner further submits that the above observations in the bail application are contrary to facts. Learned counsel for the petitioner submits that respondent Gautam Garg, in his statement recorded under Section 70 of the GST Act, has clearly stated that he and his uncle Lovkesh Kumar collected fake bills from fake and non-existent firms based in Sirsa Haryana without supplying any goods for the three companie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urbax Rai Praveen Kumar. As per amended Section 132 of the CGST Act, any person who causes to commit and retain the benefits arising out of fraudulently availing ITC without any invoice or bill is responsible and can be prosecuted under Section 132 of the CGST Act. There was enough material on the record to show that respondent Gautam Garg committed and retained the benefits arising from issuing bills without receiving goods and fraudulently availing ITC on behalf of the three companies. The petitioner didn't need to show that petitioner was appointed as Manager of the three companies. Therefore, the learned trial Court erred in observing that no evidence available against the petitioner regarding committing a crime under the CGST Act. 6. Learned counsel for the petitioner further vehemently submits that statement under Section 70 of the CGST Act is admissible in evidence that can be used against the person who has rendered such evidence. Learned counsel further submits that after the entire investigation, it was found that respondent Gautam Garg had wrongly availed ITC amounting to Rs.8.59 crores based on fake bills without supplying goods/services. The respondent, Gautam Garg, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 439(2) of Cr.P.C. 7. Therefore, the application for cancelling the petitioner's bail may be allowed, and the respondent may be directed to be taken into custody. 8. The matter was heard on 29.04.2024 in the absence of counsel for the respondent. Thereafter, the matter was again listed before this Court on 18.07.2024 upon the application filed by the respondent for considering the reply; counsel for the respondent remained absent on 18.07.2024 and matter was finally heard considering the reply filed on behalf of the respondent. 9. Learned counsel for the respondent was absent, and no one appeared on behalf of the sole respondent, Gautam Garg. 10. In response to the cancellation of the bail application, the sole respondent has submitted his written reply and justifies the order passed by the Court below. 11. The law enunciated for cancelling the bail granted is synopsised as follows:- (i) If there are serious allegations against the accused and he has not misused the bail granted to him. In that case, such an order can be revoked by the Court if the Courts below have ignored the relevant material available on record or not looked into the gravity of the offence or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r an offence specified under Sub-Section (5) of Section 132, the officer authorized to arrest the person shall inform such person of the grounds of arrest and produce him before a Magistrate within twenty-four hours" (xvii) If the bail order appears to be arbitrary, whimsical, or perverse given the specific facts of the case. 12. The Court also analysed that no material is available on the record to suggest that the accused petitioner, the manager of the three companies, generated fake and goodless invoices for claiming input credit tax. 13. The analysis of the Court below suffers from perversity as it is not the condition precedent for prosecuting a person under section 132 of the CGST Act. The provisions explicitly state that whoever commits or causes to commit and retain the benefits arising from any supplies, goods, or both without the issue of any invoice or without supplying the goods avails input tax credit is liable to prosecution. Thus, the absence of material indicating the accused petitioner as the manager of the three firms is not essential. The Court below did not assess the consequence and spirit of the provision under section 132 of the CGST Act. The Court comp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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