2019 (11) TMI 661 - HC - GST

Court clarifies lawyer not required during questioning, denies presence in GST interrogation; emphasizes unlawful methods.

Sudhir Kumar Aggarwal Versus Directorate General Of GST Intelligence

The court modified the previous order, clarifying that the presence of a lawyer during questioning is not required. The petitioner's request for ... Presence of Lawyer during examination/interrogation of GST officers - fraudulent availment of Input Tax Credit of GST - HELD THAT:- The POOLPANDI VERSUS SUPERINTENDENT, CENTRAL EXCISE [1992 (5) TMI 147 - SUPREME COURT], has categorically stated that presence of a lawyer cannot be allowed during examination/ interrogation by a Customs Officer. It was held that relevant provisions of the Constitution in this regard have to be construed in the spirit in which they were made and benefit thereunder should not be extended to exploiters engaged in Tax Evasion at the cost of public exchequer. High Court of Delhi in SUDHIR GULATI VERSUS UNION OF INDIA [1998 (2) TMI 126 - HIGH COURT OF JUDICATURE AT DELHI] has also categorically held that assistance of lawyer cannot be allowed while examination of a person in the Customs Office. The petitioner in the present case has been summoned by the Officers under GST Act who are not Police Officers and who have been conferred with the power to summon any person whose attendance they consider necessary to give evidence or to produce a document. The presence of the lawyer, therefore, is not required during the examination of the petitioner. Application disposed off. Issues Involved:1. Modification of the order dated 20.09.2019.2. Protection against physical, mental, or verbal harassment during the investigation.3. Presence of a lawyer during the interrogation.Issue-wise Detailed Analysis:Modification of the Order Dated 20.09.2019:The petitioner sought modification of the order dated 20.09.2019, which directed that the respondents should not cause any harassment to the petitioner during the investigation. The petitioner, a Director of M/s. Dominion Expoventures Pvt. Ltd., argued that the respondent agency had conducted an illegal search and detained his employee and tenant, causing them trauma. The petitioner expressed willingness to join the investigation if summoned but feared harassment. The respondent agency argued that the investigation involved fraudulent availment of Input Tax Credit of GST under fake invoices, and the case differed from the precedent cited (Nandini Satpathy vs. P.L. Dani and Anr.), as GST officers are not police officers. The court acknowledged the respondent’s position and modified the previous order, clarifying that the presence of a lawyer during questioning is not required.Protection Against Physical, Mental, or Verbal Harassment During the Investigation:The petitioner sought protection against potential harassment during the investigation. The court noted that the petitioner had not received any summons but was willing to cooperate if summoned. The petitioner relied on the precedent set in Nandini Satpathy vs. P.L. Dani and Anr., which emphasized the right to have a lawyer present during interrogation to ensure the right to silence. However, the court referred to the subsequent judgment in Pool Pandi vs. Superintendent, Central Excise and Ors., which distinguished the earlier case and denied the presence of a lawyer during questioning under the Customs Act. The court emphasized that no investigating officer has the right to use unlawful methods to extract information and that any such actions would have consequences.Presence of a Lawyer During the Interrogation:The petitioner requested the presence of a lawyer during the interrogation, citing the Nandini Satpathy case. The respondent opposed this, referencing the Pool Pandi case, where the Supreme Court refused the presence of a lawyer during questioning under the Customs Act. The court agreed with the respondent, stating that the presence of a lawyer during examination by GST officers is not required as per the law laid down in Pool Pandi’s case. The court also referenced the High Court of Delhi’s decision in Sudhir Gulati vs. UOI, which held that assistance of a lawyer cannot be allowed during examination in the Customs Office. The court concluded that the order dated 20.09.2019, allowing the presence of a lawyer, was against the judgment in Pool Pandi’s case and thus modified it to disallow the presence of a lawyer during the petitioner’s examination by the respondent officers.Conclusion:The application for modification of the order dated 20.09.2019 was disposed of, with the court clarifying that the presence of a lawyer during the petitioner’s examination by the respondent officers is not allowed. The court reiterated that any unlawful methods used by investigating officers would have legal consequences.