Lupita Saluja vs Dggi And Anr
2021 Latest Caselaw 470 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Reserved on:      03.02.2021
                                         Pronounced on:    11.02.2021

+       BAIL APPLN. 319/2021 & Crl.M.B. 92/2021
        LUPITA SALUJA                                       ..... Petitioner
                          Through        Mr.N.Hariharan, Sr. Adv. with
                                         Mr.Shadman Ahmed Siddiqui,
                                         Mr.Sumer, Mr.Siddharth S. Yadav,
                                         Mr.Samarth K. Luthra &
                                         Mr.Abhishek Pati, Advs.

                                versus
        DGGI AND ANR                                       ..... Respondents
                          Through        Mr.Harpreet Singh, Adv.

        CORAM:
        HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                             JUDGMENT

1. Present petition has been filed under section 438 Cr.P.C. seeking

anticipatory bail to the petitioner in relation to the enquiry/investigation

being conducted by the respondent under Central Goods & Service Tax Act,

2017.

2. The case of the prosecution against the petitioner herein is that

applicant and her husband created five bogus export firms, namely, M/s

Atlantic International Trading Pvt. Ltd, M/s Blue Star International Pvt. Ltd,

M/s Sun Flame Trading Pvt. Ltd., M/s Blue Evolution Pvt. Ltd and M/s

White Mountain Trading Pvt. Ltd. and fraudulently availed ITC of Rs.45

crores upon the strength of fake invoices providing fabricated information

on E-way bill portal. On enquiry, it is found that all their suppliers were

either non-existent at the declared principal place or the business address

given in the GST registration. Moreover, none of the transporters have

transported the good for the companies in question, however, only one

transporter disclosed that he transported the goods from a warehouse to ICD

TKD and not from any of the suppliers as claimed by the husband of the

applicant in his statement dated 17.11.2020 recorded u/s 70 & 174 of CGST

Act. The applicant and her husband are active directors of the

abovementioned five companies and were well aware of all the tax related

dealings of the companies. The applicant in her voluntary statement dated

10.12.2020 has stated that she signed all the financial documents regarding

day to day work of these firms. However, during investigation, it has been

revealed that applicant was drawing annual salary of Rs.7,20,000/- whereas

her husband was drawing annual salary of Rs.6,00,000/-. The applicant has

received approximately Rs.279 crores from her companies accounts in her

personal savings account maintained in Indusind Bank and Rs.5.79 crores in

her bank account maintained in ICICI Bank.

3. Learned counsel for the respondents, while opposing the present

petition, submitted that from the investigation carried out and the

incriminating evidence collected so far, it is clear that the applicant was not

merely a housewife but she was actively involved in the affairs of the

companies in question including financial affairs and was very well aware of

all the misdeeds done by her in order to claim GST refund of Rs.45 crores.

Moreover, the applicant is not cooperating in the investigation and since the

day of arrest of her husband, she is absconding and the investigation is being

conducted under strict adherence of law and under relevant provisions of

CGST Act.

4. Further submitted that filing of the Writ Petitions bearing No.10013-

15 have no bearing on the present investigation as this Court has not granted

any stay in the said writ petitions. Searches were made by the investigating

agency after obtaining due approval from the competent authority and under

relevant provisions of law. Thus, the instant petition is liable to be

dismissed.

5. Whereas, learned counsel appearing on behalf of the petitioner

submitted that Rs.279 crores credited to the personal account of the

applicant from the accounts of the Companies i.e. M/s Sun Flame Trading

Pvt. Ltd., M/s Blue Star International Private Ltd. & Atlantic International

Trading Pvt. Ltd., from 2017 to 2020, were further debited to the accounts

of the Companies. Such receipt and transfer of the aforesaid amount is duly

reflected in the Bank statement of the applicant as Annexure A- 29, and

which is further corroborated with the Audited Ledgers of the Company

which are annexed herewith as Annexure A-30. The reason for the

aforesaid transfer was that the Companies were not generating handsome

profit and with a sole purpose to earn interest, the monies received from the

foreign buyers were transferred from the current accounts of the Companies

to the saving accounts of the applicant for few days, and finally after

generating interest, it was again transferred to the current account of the

Companies. Moreover, the applicant has paid income tax on the interest

accrued thereon. Copy of the ITRs filed by the Applicant is attached

herewith as Annexure A-31.

6. Further submitted that the applicant has not siphoned off even a single

penny received from the accounts of the Company. Moreover, the applicant

has no movable and immovable assets in her name. The applicant has only

received annual salary of Rs. 3 lakhs for the Financial Year 2019-2020 and

has not received any salary for the Financial Year 2018-19. Therefore, the

allegations of the respondent that the applicant has drawn the annual salary

of Rs.7.20 lakhs are misconceived.

7. It is submitted that the alleged offence u/s 132(b), CGST Act, 2017 is

not made out against the Companies of the Applicant ("Companies") as

firstly, admittedly all the exports made by the Companies of the applicant

are not disputed by the respondent, and secondly, there is no such

allegations qua the Companies of the applicant that the Companies have

forged and fabricated the invoices.

8. As regards the 132(l)(c) CGST Act, 2017 i.e. availment of input tax

credit ("ITC") using such invoice or bill referred to in clause (b), it is

submitted that the Companies have availed the ITC as per section 16 of the

CGST Act, 2017 after fulfilling the criterion mentioned therein. The

suppliers of the Companies have been filing GSTR 1 & GSTR 3B returns

and the tax liability of the Companies is auto populated in GSTR 2A. The

Companies have been filing GSTR 3B and GSTR 9C with Audit, which

matches with the returns filed by the suppliers. Consequently, the ITC is

credited to the Accounts of the Companies. Thus, the Companies have not

fraudulently availed ITC, in fact, the ITC have been credited to the accounts

of the Companies after having found no discrepancies by the Respondent, in

the returns filed by the Suppliers and the Companies of the applicant. Thus,

no offence u/s 132(l)(c) of CGST Act is made out against the Companies.

Moreover, the goods supplied by the suppliers are sent at the ICD,

Tughlakabad and from there, it is further exported by the Companies, which

leaves no scope of doubt that the goods are not purchased from the

suppliers. It is further submitted that after receiving goods from the

suppliers, the Company has made export of crores of rupees. Thus, it is

totally misconceived and denied that the suppliers have only provided

invoices to the Companies of the applicant without any supply of goods.

9. As regards 132(l)(e) of CGST Act, 2017, i.e. evades tax, fraudulently

avails input tax credit or fraudulently obtains refund and where such offence

is not covered under clause (a) to (d), it is submitted that the Companies of

the applicant is not liable to pay tax for the goods exported by them as it

falls under zero rated supply, in view of section 16 of ICGST Act, 2017. The

Companies pay the IGST Tax by filing GSTR 1 return for their outward

supplies, which is further refunded back to companies after filing GSTR 3B

return and GSTR 9C with Audit. Moreover, the exports made by the

Companies are not disputed by the Respondent. Thus, allegations that the

Companies of the applicant evade tax or/and has fraudulently obtained

refund or ITC are wholly misconceived and thus denied.

10. I have heard learned counsel for the parties and perused the material

available on record.

11. It is not in dispute that the suppliers have their valid PAN cards as

well as Bank accounts and they have been granted registration by the

Respondents itself after doing complete verification from their end, in terms

of Chapter VI of CGST Act, 2017. Moreover, the suppliers of the

Companies of the applicant have been filing requisite GSTR returns and

doing all the compliances under CGST Act, 2017, on the basis of which ITC

is credited to the Account of the Companies of the applicant.

12. From the material available on record, it established that the suppliers

have supplied goods to the Companies, which have been further exported by

the Companies to the buyer. In addition to it, payments received by the

Companies from their foreign buyers are further transferred to account of the

suppliers via-online. Copy of some of the Ledgers maintained by the

Company qua their suppliers are annexed herewith as Annexure A-32.

Therefore, it is wholly misconceived that the suppliers are non-existent.

13. As regards the supply of goods by the transporter, it is submitted that

the e-way bill is uploaded by the supplier with the concerned online portal of

the Respondent wherein vehicle no. and HSN code are mentioned. This

portal is also linked to the Regional Transport Authority to verify whether

the vehicle is existent or not. In case of any discrepancy in vehicle arising

therefrom, the system of the Respondent does not accept it. Moreover, after

uploading the e-way bill, the goods are transported by the concerned vehicle

at ICD, Tukhlaqabad, wherein the entry pass are issued by the custom

authorities and the goods are unloaded from the vehicle and are further

inspected by the authorities. It goes to many levels of checks and inspection

by the Custom Authorities and Export General Manifesto ("EGM") are

issued at different stages. It leaves no doubt that the goods are not

transported by the concerned vehicle as it goes through different level of

checks and inspections. However, above facts have not been investigated by

the respondents.

14. It is not in dispute that on the day the impugned order has been

passed, the said Judge granted regular bail to the husband of the applicant

after spending nearly 50 days in custody who is the person involved in day-

to-day affairs of the company, however, dismissed the anticipatory bail of

the applicant.

15. It is also not in dispute that the applicant and her husband were called

for investigation by the Investigating Agency/Department on 10.12.2020

and their statements were duly recorded. Husband of the applicant was

arrested but applicant was released on the same day.

16. Admittedly, the export made by the companies of the applicant in

crores of rupees. The Investigating Agency has conducted as many as 5

raids including the residence and office premises of the applicant and seized

the evidence such as original documents, purchase and sale invoices, ledgers

and Bank Statements, hard disks, CPU, export details, etc.

17. It is not in dispute that the W.P.(C) 10013/2020 and W.P.(C)

10014/2020 and W.P.(C) 10015/2020 filed by the applicant, challenging the

powers of seizure, arrest, etc. However, the applicant was never called upon

to join the investigation in about 1 year, but called first time i.e. after her

husband and she had challenged the entire investigation before this Court in

the abovementioned writ petitions.

18. In view of above facts, I am of the view that custodial interrogation of

the applicant is not required.

19. Accordingly, the Arresting Officer is directed that in the event of

arrest, the petitioner/applicant shall be released on her furnishing a personal

bond in the sum Rs.25,000/-.

20. The petitioner shall cooperate with the investigation and make herself

available for interrogation by police officer, as and when required.

21. She shall not directly or indirectly influence any witness or tamper

with the evidence.

22. It is made clear that the Trial Court shall not get influenced by the

observation made by this Court while passing the order.

23. The petition is, accordingly, allowed and disposed of.

24. Copy of this order be transmitted to SHO/IO for information and

necessary compliance.

25. The judgment be uploaded on the website forthwith.

(SURESH KUMAR KAIT) JUDGE FEBRUARY 11, 2021 ab