Santosh Kumar Sah Vs Union of India & Ors. (Calcutta High Court)
The Calcutta High Court considered a writ petition filed by Santosh Kumar Sah seeking quashing of criminal proceedings in CR Case No. 530 of 2025, arising from a complaint dated April 1, 2025 and subsequent charge-sheet dated August 6, 2025. The proceedings concern alleged offences under Section 132(1)(b), 132(1)(c), 132(1)(i) and 132(1)(5) of the CGST Act, 2017, pending before the Additional Chief Judicial Magistrate, Siliguri. The petitioner also sought a declaration that his arrest on March 30, 2025 was illegal, unlawful and without jurisdiction.
The petitioner relied upon the CBIC circular dated July 6, 2022 concerning tax invoices issued without an underlying supply. According to the submission, where a registered person issues such an invoice to another registered person, penal action under Section 122(1)(ii) of the CGST Act is contemplated against the person issuing the invoice. The petitioner submitted that ITC Ltd. had issued the tax invoice to him and therefore penal action ought to have been initiated against ITC Ltd. instead.
The petitioner further alleged non-compliance with the prosecution-launching guidelines contained in Instruction No. 4/2022-23 dated August 1, 2022, particularly paragraph 7.1.1. It was submitted that the prosecution complaint was not filed within the timeframe indicated in the instruction and that the procedure for obtaining sanction for prosecution was also not followed.
The petitioner also submitted that the prosecution case relied upon electronic toll data while disregarding documentary and physical evidence allegedly pointing otherwise.
The CGST authorities sought time to respond and objected to the maintainability of the writ petition under Article 226 of the Constitution for seeking quashing of a charge-sheet submitted before the ACJM. They also submitted that adjudication proceedings had commenced and that the petitioner had not filed a reply. The petitioner disputed this submission and stated that he was contesting the adjudication proceedings.
Considering that the writ petition raised various legal and factual issues and that an objection regarding maintainability had been raised, the High Court granted the respondents an opportunity to file an affidavit in opposition. The respondents were directed to file the affidavit within four weeks, with the petitioner permitted to file a reply within two weeks thereafter.
The Court kept the question of maintainability of the writ petition open for determination at the final hearing. Parties were permitted to mention the matter for enlistment under the heading “Hearing” after expiry of the period fixed for exchange of affidavits.
FULL TEXT OF THE JUDGMENT/ORDER OF CALCUTTA HIGH COURT
The petitioner has prayed for quashing of the criminal proceeding in connection with CR Case No. 530 of 2025 arising out of the complaint dated April 1, 2025 filed by the Superintendent, Siliguri CGST and Central Excise Commissioner and the subsequent charge-sheet dated August 6, 2025 for alleged offences punishable under Section 132(1)(b), 132(1)(c), 132(1)(i) and 132(1)(5) of the CGST Act, 2017 which is presently pending before the learned Additional Chief Judicial Magistrate, Siliguri. The petitioner has also prayed for a declaration that the arrest of the petitioner on March 30, 2025 is illegal, unlawful and without jurisdiction.
Learned advocate appearing for the petitioner submits that there has been gross violation of the clarifications made vide circular dated July 6, 2022 issued by the Government of India, Ministry of Finance, Department of Revenue, Central Board of Indirect Taxes and Customs wherein with regard to the issues raised under serial no. 1 of the said memo, it has been stated that the registered person who issued the tax invoice to another registered person without any underlying supply of goods or services or both, shall be liable for penal action under Section 122(1)(ii) of the CGST Act for issuing tax invoices without actual supply of goods or service or both. Learned advocate appearing for the petitioner submits that ITC Ltd. is the registered person who has issued the tax invoice to the petitioner and in view of the clarification under serial no. 1, a penal action ought to have been initiated against the ITC limited instead of against the petitioner.
Learned advocate appearing for the petitioner further submits that the guidelines of launching of prosecution under the Central Goods and Services Act, 2017 under instruction no. 4/2022-23 dated August 1, 2022, more particularly sub-paragraph 7.1.1, has been violated as the prosecution complaint was not filed within the timeframe indicated in the said instruction. He further submits that procedure laid down for seeking the sanction for prosecution was also not followed.
He further submits that the prosecution case is built upon electronic toll data disregarding the documentary and physical evidence to the contrary.
Mr. Banik, learned advocate appearing for the CGST authorities prays for time to make appropriate submission in reply to the submission made by the learned advocate appearing for the petitioner. He raised an objection against the maintainability of an application under Article 226 of the Constitution of India praying for quashing of a charge-sheet submitted before the concerned ACJM. He submits that an adjudication process has also started and the petitioner has not filed any reply in the said adjudication process.
Such submission is, however, disputed by the learned Senior Advocate appearing for the petitioner who submits that the petitioner is contesting the adjudication process.
However, since various illegal and factual issues have been raised in this writ petition and an objection against maintainability of the writ petition 2026:CHC-JP:101 has been raised, this court feels that an opportunity should be granted to the respondents to file their affidavit in opposition.
Let affidavit-in-opposition be filed within a period of four weeks from date; reply thereto, if any, be filed within a period of two weeks thereafter.
Parties will be at liberty to mention this matter for enlistment under the heading ‘Hearing’ after expiry of the period fixed for exchange of affidavits.
The question of maintainability of the writ petition is kept open to be decided at the time of final hearing.
