Yash Alloys India Through Yashpal B. Picholiya and Yash Metal Impex Pvt.Ltd. Through Yashpal B. Picholiya Versus Union of India and Ors.

1. We have heard Mr. Setalvad, learned Senior Counsel for the petitioner on boththese petitions, Mr. Mishra, learned Counsel for respondent Nos. 1 and 2 andMs. Chavan, learned Additional Government Pleader, for the State – respondentNos. 3 and 4.

2. Although the petitioners in these petitions are two different entities, the causeof action being pursued and the prayers as made, are common. Illustratively, we note the prayers as made in the Writ Petition no. 29186 of 2023 which readthus:- A) That this Hon’ble Court under Article 226 of the Constitution of India, 1950be pleased to issue a writ of Mandamus or any other appropriate Writ, Order,Direction to respondent no. 3 Authority that is Assistant Commissioner of StateTax (Investigation-A) Mumbai under MGST Act, 2017 that the proceedinginitiated pursuant to summons and panchanama dated 04.10.2023 against thepetitioner and the investigation, audit may be stayed/stooped by the State GSTwith further direction that not to take any coercive steps, since the proceeding isalready going under CGST Act, 2017. B) That this Hon’ble Court under Article 226 of the Constitution of India, 1950may be pleased to issue a Writ of Mandamus or any appropriate order ordirection and thereby direct the respondent no. 3 Authority that the presentpetitioner may not be arrested or no coercive action to be taken against thepresent petitioner in view of the summons under Section 70 of the MGST Act andso also the investigation going under the MGST Act against the presentpetitioner. C) Interim/AD-interim relief in terms of prayer clause (A) and (B) be awarded infavour of the petitioner. D) That the costs of this Writ petition be awarded in favour of petitioner againstrespondents, by this Hon’ble Court.”

3. The primary grievance as argued by Mr. Setalvad is to the effect thatrespondent Nos. 3 and 4 have undertaken investigation, on the subject matter,which is already under the investigation under the Central Goods and ServicesTax Act, 2017 (for short ‘CGST Act’). It is his submission that in such asituation, the provisions of Section 6 (2)(b) of the Maharashtra Goods andServices Tax Act, 2017 (for short ‘MGST Act’) are clearly applicable, whichprovides that where a proper officer under the Central Goods and Services TaxAct has initiated any proceedings on a subject matter, no proceedings shall beinitiated by the proper officer under the MGST Act on the same subject matter.

4. To consider such contention as raised on behalf of the petitioners, with theassistance of Mr. Setalvad, we have perused the paper book of both thesepetitions. We find that under the CGST Act proceedings are initiated against thepetitioner, however, it clearly appears that the subject matter of suchinvestigation is in respect of the period from 1 July 2017 till 31 March 2021. Asinformed by Mr. Mishra, learned Counsel for respondent Nos. 1 and 2, suchinvestigation is in regard to the fraudulent ITC. Insofar as the investigation beingresorted under the MGST Act by respondent Nos. 3 and 4 is concerned, it is inrespect of the period from 1 April 2021 to 4 October 2023. This has beenclarified by the Assistant Commissioner of State Tax (INV-02), Investigation-A,Mumbai, vide letter dated 7 October 2023 as addressed to the petitioners. Itappears that although the petitioners were asked to furnish documents for theperiod from 1 July 2017 till 31 March 2021, the investigation, as informed to thepetitioners, under the MGST Act would be for the period from 1 April 2021 to 4October 2023. In such context, the petitioners themselves have taken a fair standthat the petitioners by requesting the State Authorities to investigate from 1 April2021 till the date of such letter to avoid duplication of the proceedings. Thecontents of the said letter read thus:- “We M/s. Yash Metal Impex Pvt. Ltd. having GST No. 27AAAACY4362Q1ZOregistered. We would like to inform you that we have been already underinvestigation from CGST Investigation Department, Mumbai from 01.07.2017 to31.03.2021 which documents has been submitted as per supporting letter herewith attached, the letter copy for your good-self reference. So please wewould like to humble request you to please investigate from 01.04.2021 to tilltoday to avoid duplication of proceeding.” (emphasis supplied)

5. At this stage, Ms. Chavan, learned Additional Government Pleader has statedthat the scope of investigation as has been undertaken under the MGST Act is inrespect of illegal refunds as sought by the petitioners.

6. Thus, considering the documents on record and the contentions as raised, weare unable to accept Mr. Setalvad’s contention that the provisions of Section 6 (2)(b) of the MGST Act, in any manner, are attracted in the facts of the presentcase.

7. In so far as Mr. Setalvad’s contention that under the MGST Act invoking theprovisions of Section 69 , there is a likelihood of arrest of the proprietor of thepetitioner under Section 69 of the MGST Act. In our opinion, in this regard, thepetitioners are not remediless as the petitioners can invoke provisions of Code ofCriminal Procedure, as in the present proceedings no criminal cause of actioncan be subject matter of adjudication.

8. In so far as the attachment of the property of the petitioners is concerned,which is by a letter dated 17 October 2023, we may observe that the petitionershave a remedy of invoking Rule 159 (5) of the MGST Rules, as and when thepetitioners have a cause of action to raise such contentions against theattachment. Thus, such remedy being available to the petitioners, it would bepremature for the petitioners to raise any such contention in the presentproceedings. We accordingly, keep open all contentions of the parties on suchissue.

9. The petitions are accordingly disposed of in terms of the above observations.

10. We clarify that all contentions of the parties under the CGST Act and theMGST Act, are expressly kept open.

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