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In India, prosecution for GST offences is principally governed by section 132 of the Central Goods and Services Tax Act, 2017. It covers deliberate tax evasion, fake or unsupported invoicing, wrongful input-tax credit, fraudulent refunds, non-remittance of tax collected, specified TDS/TCS failures, evidence tampering and obstruction-related conduct. Conviction can result in imprisonment and a fine, but an error, tax demand, summons or arrest is not itself a conviction.
The exact imprisonment bands, monetary cut-offs and arrest classification must be checked against the latest consolidated Act and commencement notifications. CBIC Instruction 04/2022-23 (1 September 2022) separately says prosecution should normally be considered when evaded tax, misused input tax credit or fraudulent refund exceeds ₹5 crore, subject to exceptions; that figure is departmental guidance, not a statutory sentencing threshold.
What section 132 treats as a GST prosecution offence
Section 132 is aimed at conduct with a criminal character, rather than every mistake in a return. Several clauses require an intention to evade tax, knowledge, fraudulent intent or another culpable state of mind. A disputed classification, an arithmetic mistake corrected in proceedings or a bona fide interpretation of a complex provision will not automatically become a criminal case.
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The following categories are set out in the Act text used by the Central Board of Indirect Taxes and Customs (CBIC). The wording and numbering should be checked against the current consolidated version before being relied on in a live case.
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| Conduct | What makes it potentially criminal | Typical issue investigated |
|---|---|---|
| Supply without an invoice | Supplying goods or services without issuing an invoice, with intent to evade tax | Unrecorded sales, suppressed turnover or deliberate omission of tax invoices |
| Invoice without a real supply | Issuing an invoice or bill without any corresponding supply | Paper transactions used to create a false trail or pass credit |
| Wrongful input-tax credit | Taking or using input-tax credit on the strength of an invoice or bill without the underlying lawful entitlement | Credit based on invoices from non-supplying entities, circular trading or fabricated documents |
| Tax collected but not remitted | Collecting tax from a recipient and failing to pay it to the Government for more than three months | Amounts shown as GST on invoices but retained instead of deposited |
| Evasion or fraudulent refund | Deliberately evading tax or obtaining a refund by fraud | False export or turnover claims, manipulated records or invented transactions |
| TDS failures | Specified failures to deduct tax at source, deducting less than required or failing to pay deducted tax as required | Non-compliance by a person responsible for GST tax deduction |
| TCS failures | Specified failures involving tax collection at source, including failure to collect or pay collected amounts | Non-compliance by an electronic-commerce operator or other person covered by TCS rules |
| Improper distribution of input tax credit | Distributing credit in contravention of the Act | Incorrect allocation by an input-service distributor or similar mechanism |
| Dealing with prohibited services | Receiving, using or dealing in services while knowing, or having reason to believe, that they contravene the Act | Participation in arrangements where the recipient knew the supply or documentation was unlawful |
| Evidence or document tampering | Tampering with or destroying material evidence or documents | Deleting, altering or destroying records relevant to an investigation |
| Failure to provide information or giving false information | Failing to furnish information required under the Act, or knowingly supplying information that is false without reasonable belief that it is true | Ignoring a lawful information requirement or submitting knowingly false records |
| Attempt and abetment | Attempting, or helping another person commit, the listed offences | Organising, financing, directing or facilitating an evasion scheme |
The “without supply” invoice offence is especially important: a business can face exposure even when no tax has yet been collected from a customer if the document was issued to create an artificial transaction or credit. Conversely, an invoice dispute arising from a genuine supply is not automatically proof of criminal intent.
GST demand, prosecution, arrest and imprisonment are different events
A tax department can determine additional tax, interest and penalty through civil adjudication. Prosecution is a separate criminal complaint alleging that a section 132 offence was committed. The department’s decision to issue a demand does not itself establish criminal liability.
- Investigation: Officers collect invoices, e-way bills, ledgers, bank information, statements, digital records and third-party evidence.
- Adjudication or demand: The tax authority may propose or confirm tax, interest and civil penalties. This process decides a fiscal liability, not guilt beyond reasonable doubt.
- Prosecution decision: A competent authority must consider whether the evidence supports a criminal case and whether prosecution is justified under CBIC policy.
- Sanction: Section 132(6) requires prior sanction before a prosecution complaint is launched. CBIC Instruction 04/2022-23 assigns sanctioning responsibility to the competent Commissioner and, for specified Directorate General of Intelligence investigations, the relevant senior DGGI authority.
- Criminal-court proceedings: The complaint is tried under criminal procedure. The prosecution must prove the offence and the required mental element to the criminal standard.
- Conviction or acquittal: Imprisonment follows only a conviction and an order of the criminal court. A notice, summons, statement, arrest or complaint is not a conviction.
CBIC’s instruction says adjudication and prosecution may proceed independently. In grave matters, a complaint may be filed before adjudication where evidence is strong, delay is anticipated or an arrest case warrants early action. That possibility does not remove the need for a properly sanctioned complaint and a criminal trial.
What the ₹5 crore prosecution guideline means
Instruction 04/2022-23, issued on 1 September 2022, says prosecution should normally be launched when the amount of evaded tax, input-tax credit misused or fraudulent refund connected with section 132(1) offences is more than ₹500 lakh (₹5 crore). It is a prosecution-launch guideline, not the definition of an offence and not a guaranteed “jail threshold.” The instruction may be changed or superseded, so its current status should be confirmed before relying on it.
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Exceptions to the normal threshold
The instruction identifies two important exceptions:
- Habitual evaders: The instruction describes a habitual evader as a person with two or more confirmed demand cases at the first adjudication level or above during the preceding two years, with aggregate amounts exceeding ₹5 crore.
- Arrest cases: Prosecution may be considered even when the normal monetary guideline is not met if an arrest was made under section 69.
These exceptions do not mean that every arrest produces a conviction. They explain when departmental policy may support filing a complaint despite the normal amount-based guidance.
Cases that should normally not be prosecuted under the instruction
CBIC states that prosecution should not normally be launched for technical matters or where an additional tax claim rests on a difference of opinion about legal interpretation. It also directs investigators to assess whether the evidence can establish, beyond reasonable doubt, a guilty mind, knowledge, fraudulent intention or mens rea. A large disputed amount alone is therefore not a substitute for proof of deliberate criminal conduct.
How imprisonment and fines are determined
Section 132 provides imprisonment and a fine for specified offences, with seriousness linked to the offence and the amount involved. The CBIC-hosted Act page used in older summaries displays maximum terms of up to five years, three years or one year for different amount bands, plus a six-month maximum for certain specified offences. That rendering is legacy material; amendments and commencement notifications may have changed the operative thresholds or classifications. Do not treat those bands, rupee cut-offs or bail descriptions as current law without checking the latest official consolidated Act.
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Repeat conviction provisions and the treatment of offences as cognizable, non-bailable, non-cognizable or bailable are similarly amendment-sensitive. The correct result depends on the version of section 132 in force on the relevant date, the precise clause charged and subsequent notifications. A lawyer should verify the current text rather than rely on an old FAQ or an undated website summary.
Arrest and bail: what they do and do not establish
Section 69 gives the Commissioner an arrest power when the statutory conditions and a reason-to-believe standard are met. Arrest is an investigative and procedural step. It does not prove that the person committed an offence, that the department’s tax calculation is correct or that imprisonment will follow.
Bail is governed by the applicable criminal-procedure classification and the court’s order. Because the classification and monetary cut-offs have been amended over time, a person should obtain the arrest memo, understand the precise section invoked and seek an Indian criminal-tax lawyer immediately. Do not infer bail status from the amount in a notice alone.
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Criminal GST cases are built from records and the connection between those records and the people involved. Relevant evidence can include:
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- Tax invoices, credit notes, purchase registers, sales registers and general ledgers.
- E-way bills, transport documents, delivery confirmations, warehouse records and stock movement.
- GST returns, electronic-credit-ledger entries, refund applications and bank statements.
- Communications, accounting-system logs, device data and instructions showing who created or approved transactions.
- Supplier and customer statements, site verification and evidence that an invoicing entity had no capacity to make the stated supply.
- Evidence of deletion, alteration or concealment after an inquiry began.
The question is not merely whether a document contains an error. Investigators and the court may ask whether the person knew the transaction was false, intended to evade tax, deliberately claimed credit without a supply or participated in another person’s scheme.
When company directors and officers can be charged
Section 137 addresses offences by companies. The company may be proceeded against, and people responsible for the conduct of its business may also face liability. A director or officer can additionally be exposed where the offence is attributable to that person’s consent, connivance or neglect.
This is not automatic liability for every director, shareholder or employee. CBIC’s instruction says prosecution should focus on people involved in day-to-day operations who actively participated in, or connived at, the offence. Evidence of actual responsibility matters: approval authority, control of accounts, instructions to issue invoices, handling of tax collections and knowledge of the arrangement can be significant. A merely formal designation should not be treated as proof of participation.
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Fake invoices with no movement of goods
An entity issues invoices to several businesses, receives a fee and enables those businesses to claim input-tax credit, while no goods are supplied. The invoice-without-supply and wrongful-credit provisions may both be relevant, along with attempt or abetment for participants who arranged the transactions.
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Genuine supply with a documentation dispute
A supplier made a real delivery but used an incorrect classification or made a timing error in its return. The department may raise tax, interest or penalty. Without evidence of intentional evasion or another statutory mental element, the case should not be assumed to be a section 132 prosecution.
Tax shown on invoices but retained
A business collects GST from customers and keeps the money for more than the statutory period instead of paying it to the Government. That conduct is expressly listed, but the surrounding records and the reason for non-payment remain important to the investigation.
Destroyed records after a summons
Deleting invoices, ledgers or electronic evidence relevant to an inquiry can create a separate prosecution risk even if the original tax calculation is disputed. Preserving records after receiving a notice or summons is therefore critical.
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- Read the document precisely: Note the issuing authority, date, GSTIN, period, sections cited, attendance time and documents requested.
- Preserve records: Stop routine deletion and retain accounting databases, emails, invoices, transport records, bank material and relevant devices in their original form.
- Build a transaction chronology: Match purchase orders, invoices, dispatch, receipt, payment, return reporting and credit use for each disputed transaction.
- Obtain specialist advice: An Indian GST and criminal-tax lawyer can advise on attendance, statements, privilege, bail and parallel adjudication.
- Do not guess in a statement: Distinguish personal knowledge from information obtained from staff or systems. Correct an accidental error through the proper written process.
- Assess exposure separately: Calculate the department’s alleged amount, identify any arrest or prosecution action and examine the role attributed to each officer or director.
Do not destroy, backdate or manufacture documents, pressure employees or suppliers, or ignore a lawful information request. Those actions can create additional section 132 issues.
Key limits of any general answer
The result depends on the statutory text in force on the date of the alleged conduct, the exact section charged, the evidence of intent, the amount calculated by the department and the individual’s role. A demand can be reduced or cancelled without deciding every criminal issue; a prosecution can be filed before adjudication; and an arrest can occur without a later conviction. Anyone facing a summons, search, arrest or complaint should obtain case-specific advice rather than treating a general explanation as a defence.
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