Dear Sirs,
Let me thank you all for being kind enough to reply to my query and I value the expertise and good intentions of each one. I also hold the view that, LAW is capable of differing interpretations and therefore no view, including mine, becomes universal truths or sacrosanct. Whenever I plead in GST I take a very strong approach and the same has kept me in good stead. I also take a position that BEING STUPID IS NO OFFENCE IN GST. So ones pleadings do not even have to be logical. No prejudice would attach to a tax payer just because his pleadings were nonsense.
Now regarding the views expressed by experts.
The Section that authorizes the Proper Officer to audit accounts is Sec 65. Further Sec 65(4) has specified time limits to complete the Audit.
- Normal Cases: Audit SHALL be completed within a period of three months from the date of commencement of Audit
- For reason to be recorded the Commissioner may extend the period by another six months
Date of Commencement is : Date on which records called for by the tax authorities were made available or actual institution of audit at the place of business whichever is earlier.
Sub Section 2 of Sec 65 gives power to the Officer to conduct the audit at the place of business of the registered person or in their office. (Called Desk Audit)
Rule 101 Sub rule 4 says the proper officer may inform person and seek objections and shall finalise findings of the audit after due consideration of the reply
Rule 101 Sub rule 5 says : On conclusion of audit the officer would inform findings.
In this particular case the time lines were
1.ADT 01 18/12/2023 demanded attendance on 09/01/2024 and production of documents which we did.
2. ADT 01 also said “I propose to conduct audit at my Office on 09/01/2024
Further no requests were made for production of books or records, no deficiency notice were issued. A number of Audit memos were issued seeking clarification about accounting entries in books etc right from 15th of January 2024.
Now there is positive evidence to the fact that audit was commenced at least from 15th January 2024.
3. Observations under Rule 101(4) issued on 14.11.2024
My Reasons and Logic for objections
Part III of Constitution of India Fundamental Rights
Article 21. Protection of life and personal liberty.—No person shall be deprived of his life or personal liberty except according to procedure established by law.
Personal liberty includes the freedom to move freely, the freedom to choose one's place of residence, and the freedom to engage in any lawful occupation or profession
Article 265. Taxes not to be imposed save by authority of law.—No tax shall be levied or collected except by authority of law.
Authority of Law or jurisdiction is obtained only when procedure established by law is followed.
India is a country which has adopted Rule of Law by its constitution. A person’s life or personal liberties can be deprived by the State and its instrumentalities only by following Procedure Established by law. Ditto in case of imposing taxes.
Any deviation from procedure established by law becomes anti-constitutional and as such void ab initio. And it is the right of every citizen to demand that procedure established by law be followed in proceedings that are designed to deprive him of his personal liberty. Further in Maneka Gandhi Vs Union of India - 1978 (1) TMI 161 - SUPREME COURTcase the Supreme Court had clearly laid down that procedure established by law should invariably follow principles of natural justice.
The intention of Parliament in laying down such strict conditions on the length of audit is not accidental. The legislature was very conscious of the disruption a department audit at a business premises would entail. That was the reason the Commissioner was made the proper officer to apply his mind and give extension to the time limit for conclusion of audit. Please note that an inspection, search or seizure can be authorised by the Joint Commissioner but extension of audit could be done only by a commissioner. From this, the legislative intent to conclude audit urgently is evident.
Now, regarding whether there is provision in GST law to provide certain documents.
When deviation from procedure of law is alleged by the tax payer, the department is bound to address such objections through a speaking order Rule 101(4). Requesting copies of relied upon documents, asking for cross examination of witnesses etc are not done on the basis of a particular section in GST but on the basis of the existing jurisprudence as well as principles of natural justice. Violation of principles of natural justice is a violation of Article 21 of the constitution so is any deviation from procedure established by law. The tax payer is free to even approach the High Court directly if there is a violation of principles of natural justice or other constitutional provisions.
So when there is an objection to deviation from due process by the tax payer the Officer is bound to address it in his order with reasons. Whether the Officer provides a copy or not is not material. Refusal to do so would be at the peril of the demand at Appellate forums. Any way we shall apply and obtain it through RTI.
In any kind of SCN there will be certain allegations with supporting evidences to prove the allegations and a consequential demand if the allegations were proved.
Allegations : Allegations have to be disputed with valid grounds, reasons, evidence etc. They cannot be rejected.
Demands: They have to be either Accepted or Rejected to have clarity. Disputing a demand does not have any clarity.
Politeness in written communications is different from leaving it ambiguous. It is a cultural aspect to suffer from an urge to leave communication confusing, especially when providing a response of disagreement and refusal. Tax payer’s reply must be clear and unambiguous about the position of either party so that proceedings can progress with clarity. After all adjudication, is not the last step, in fact, it is the first step in the long process until the resolution of the lis or dispute.
Regarding RULERS and RULED OVERS suffice to say that Rule of law mandates that
THE COUNTRY SHOULD BE RULED BY RULES AND NOT BY RULERS.
Any deviation from due process by the state and its instrumentalities is a violation of fundamental rights as guaranteed by constitution. It needs to be questioned. The proper officer inventing a new due process is trying to legislate on his own. Such an eventuality cannot be allowed. If we do it, ultimately the country itself will fall into lawlessness.
TaxTMI 
TaxTMI 
TaxTMI 
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