TaxTMI 
TaxTMI 
2020 (1) TMI 973
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....ght days, during which period the family members of the petitioner were at the mercy of the authorised officer and were confined to the searched premises and kept under surveillance and were not permitted to leave the premises without the permission of the authorised officer, has shocked the conscience of this court. This court is, therefore, of the view that it would be failing in its duty as a sentinel on the qui vive if it were to turn a blind eye to the violation of the legal and fundamental rights of citizens by authoritarianism and remain a mute spectator. It is, in these circumstances, that the court has thought it fit to comment upon the validity and nature of the search proceedings. 2. On 25.10.2019 this court passed an order in the following terms: "1. Mr. Chetan Pandya, learned advocate for the petitioner has tendered an affidavit of Nathalal Maganlal Chauhan, the father of the petitioner. The same is taken on record. 2. The learned Assistant Government Pleader has submitted a confidential report of the proceedings carried out by the respondents at the premises of the petitioner pursuant to the authorization issued in favour of the second respondent under sub-sec....
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....ng goods or the owner or the operator of warehouse or godown or any other place. (2) Where the proper officer, not below the rank of Joint Commissioner, either pursuant to an inspection carried out under sub-section (1) or otherwise, has reasons to believe that any goods liable to confiscation or any documents or books or things, which in his opinion shall be useful for or relevant to any proceedings under this Act, are secreted in any place, he may authorise in writing any other officer of central tax to search and seize or may himself search and seize such goods, documents or books or things: Provided that where it is not practicable to seize any such goods, the proper officer, or any officer authorised by him, may serve on the owner or the custodian of the goods an order that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of such officer: Provided further that the documents or books or things so seized shall be retained by such officer only for so long as may be necessary for their examination and for any inquiry or proceedings under this Act. (3) The documents, books or things referred to in subsection (2) or any ot....
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....h manner as may be prescribed. (10) The provisions of the Code of Criminal Procedure, 1973, relating to search and seizure, shall, so far as may be, apply to search and seizure under this section subject to the modification that sub-section (5) of section 165 of the said Code shall have effect as if for the word "Magistrate", wherever it occurs, the word "Commissioner" were substituted. (11) Where the proper officer has reasons to believe that any person has evaded or is attempting to evade the payment of any tax, he may, for reasons to be recorded in writing, seize the accounts, registers or documents of such person produced before him and shall grant a receipt for the same, and shall retain the same for so long as may be necessary in connection with any proceedings under this Act or the rules made thereunder for prosecution. (12) The Commissioner or an officer authorised by him may cause purchase of any goods or services or both by any person authorised by him from the business premises of any taxable person, to check the issue of tax invoices or bills of supply by such taxable person, and on return of goods so purchased by such officer, such taxable person or any person....
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....vember, 2019. 7. Stand over to 13th November, 2019. 8. Registry to forthwith forward a copy of this order to the Commissioner of State Tax as well as Chief Secretary of the State to look into the matter and do the needful to ensure that such incidents are not repeated." 3. Thereafter, on request made by the learned Government Pleader, time was granted to place the report in compliance with the above order and the matter was adjourned to 20.11.2019. 4. On 20.11.2019, this court passed the following order: "1. Ms. Manisha L. Shah, learned Government Pleader has tendered a report of inquiry made by the Chief Commissioner of State Tax, Gujarat State, Ahmedabad in compliance with the directions issued by this court vide order dated 25.10.2019. 2. Upon perusal of the report, it emerges that it is no better than the earlier report dated 20.10.2019 submitted by the Assistant Commissioner of State Tax, and does not meet with the directions issued by this court in letter and spirit. It appears that the Chief Commissioner of G.S.T. has taken a very lenient view in the matter and instead of examining the action of the concerned officers in the context of the relevant provisions....
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....ode. 7.1 However, the learned counsel, despite his best efforts, could not justify the continued stay of the search party in the searched premises after the search was over on 11.10.2019. It was, however, submitted that such action of the officers, though not backed by any statutory provision, was bona fide, and the reason why this has happened is because of past precedents inasmuch as such action was being taken earlier under the Gujarat Value Added Tax Act, 2003 (hereinafter referred to as "the GVAT Act"). It was urged that the respondents have already framed guidelines laying down the procedure to be followed while conducting search under sub-section (2) of section 67 of the GST Acts and that the respondents are ready and willing to incorporate such suggestions as may be made by this court. 8. Mr. Tushar Hemani, learned amicus curiae, invited the attention of this court to the decision of the Supreme Court in District Registrar and Collector, Hyderabad and Another v. Canara Bank, (2005) 1 SCC 496, wherein the provisions for search and seizure under section 132(5) of the Income Tax Act, 1961 were construed strictly on the ground that they were a "serious intrusion into the pr....
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....in Article 21, part of the right to freedom of speech and expression in Article 19(1) (a), and also of the right to movement in Article 19(1)(d), held that the Regulations permitting surveillance violated the fundamental right of privacy. In the discussion the learned Judge referred to Wolf v. Colorado. In effect, all the seven learned Judges held that the "right to privacy" was part of the right to "life" in Article 21. 37. We now come to the second case, Gobind v. State of M.P. in which Mathew, J. developed the law as to privacy from where it was left in Kharak Singh. The learned Judge referred to Griswold v. Connecticut where Douglas, J. referred to the theory of penumbras and peripheral rights and had stated that the right to privacy was implied in the right to free speech and could be gathered from the entirety of fundamental rights in the constitutional scheme, for, without it, these rights could not be enjoyed meaningfully. Mathew, J. also referred to Jane Roe v. Henry Wade where it was pointed out (SCC p. 155, para 18) that though the right to privacy was not specifically referred to in the US Constitution, the right did exist and "roots of that right may be found in ....
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....cedure that was "reasonable". So far as Regulation 856 was concerned, it only imposed reasonable restrictions within Article 19(5) and there was, even otherwise, a compelling State interest. Regulations 853(1) and 857 referred to a class of persons who were suspected as being habitual criminals, while Regulation 857 classified persons who could reasonably be held to have criminal tendencies. Further Regulation 855 empowered surveillance only of persons against whom reasonable materials existed for the purpose of inducing an opinion that they show a determination to lead a life of crime. The Court thus read down the Regulations and upheld them for the above reasons. 39. We have referred in detail to the reasons given by Mathew, J. in Gobind to show that, the right to privacy has been implied in Articles 19(1)(a) and (d) and Article 21; that, the right is not absolute and that any State intrusion can be a reasonable restriction only if it has reasonable basis or reasonable materials to support it. 40. A two-Judge Bench in R. Rajagopal v. State of T.N. held the right of privacy to be implicit in the right to life and liberty guaranteed to the citizens of India by Article 21. "It....
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....ection 166 refers to the question as to when an officer in charge of a police station may require another to issue search warrant. 51. In the Income Tax Act, 1961 elaborate provisions are made in regard to "search and seizure" in Section 132; power to requisition books of account, etc. in Section 132-A; power to call for information as stated in Section 133. Section 133(6) deals with power of officers to require any bank to furnish any information as specified there. There are safeguards. Section 132 uses the words "in consequence of information in his possession, has reason to believe". (emphasis supplied) Section 132(1A) uses the words "in consequence of information in his possession, has reason to suspect". Section 132(13) says that the provisions of the Code of Criminal Procedure, relating to searches and seizure shall apply, so far as may be, to searches and seizures under Sections 132(1) and 132-(1A). There are also Rules made under Section 132(14). Likewise Section 132A(1) uses the words "in consequence of information in his possession, has reason to believe". (emphasis supplied) Section 133 which deals with the power to call for information from banks and others uses the....
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.... person has secreted about his person any such books of account, documents, money, bullion, jewellery or other valuable article or thing, to submit that there are no similar provisions in the GST Acts, which permit search of a person. Reference was made to clause (iib) of subsection (1) of section 132 of the Income Tax Act, 1961, which provides that the authorised officer may require any person who is found to be in possession or control of any books of account or other documents maintained in the form of electronic record, as defined in clause (f) of sub-section (1) of section 2 of the Information Technology Act, 2000, to afford the authorised officer the necessary facility to inspect such books of accounts or other documents, to submit that there are no similar provisions under the GST Acts. 8.5 The learned amicus curiae submitted that section 67 of the GST Acts, per se, does not empower the authorised officer to record the statement of any person, including the person in whose name the authorisation has been issued. It was submitted that rule 139 of the Central Goods and Services Tax Rules, 2017 (hereinafter referred to as "the CGST Rules") and the authorisation for inspection....
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....hose attendance he considers necessary either to give evidence or to produce a document or thing in any inquiry in the same manner, as provided in the case of a civil court under the provisions of the Code of Civil Procedure, 1908. For issuing summons, proper procedure must be followed by the Department. Thus, in the absence of any summons being issued under section 70 of the GST Acts, no statement can be recorded under section 67 of the GST Acts. 8.10 The attention of the court was invited to the provisions of Order V of the Code of Civil Procedure, which provides for issue and service of summons as well as to the provisions of Order XVI of the Code of Civil Procedure, which provides for summoning and attendance of witnesses, to submit that the same contemplate reasonable time being provided to a person to whom a summons is issued and hence, section 70 of the GST Acts cannot be read with sub-section (2) of section 67 thereof and that both the powers cannot be exercised concurrently. 8.11 It was pointed out that section 144 of the GST Acts, which makes provision for presumption as to documents in certain cases, is in pari materia with sub-section (4A) of section 132 of the Inco....
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....ertainly be seized and hence, there is no infirmity in the action of the respondents in seizing the mobile phone of the petitioner's mother and making a copy thereof. 9.1 Reference was made to the provisions of section 144 of the GST Acts which reads thus: 144. Presumption as to documents in certain cases.- Where any document- (1) is produced by any person under this Act or any other law for the time being in force; or (ii) has been seized from the custody or control of any person under this Act or any other law for the time being in force; or (iii) has been received from any place outside India in the course of any proceedings under this Act or any other law for the time being in force, and such document is tendered by the prosecution in evidence against him or any other person who is tried jointly with him, the court shall- (a) unless the contrary is proved by such person, presume- (i) the truth of the contents of such document; (ii) that the signature and every other part of such document which purports to be in the handwriting of any particular person or which the court may reasonably assume to have been signed by, or to be in the handwriting of, any part....
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....r, the officers were replaced by others. It is further stated that out of five family members, three members were female, whereas all the three officers, including the Gunman, were male, who had stayed back forcibly at their residential premise and such episode continued till 18.10.2019. It is inter alia stated that during the course of the day, statements of the family members were recorded and their mobile phones were checked from time to time. It is further stated that during the course of the eight days of search, the family members were more or less confined to the house and were not allowed to go anywhere without their permission. Various other submissions have been made, but it is not necessary to refer to the same at this stage. 11. In the aforesaid backdrop, reference may be made to the relevant statutory provisions. Sub-section (2) of section 67 of the GST Acts makes provision for search of such place where the proper officer, not below the rank of Joint Commissioner, has reason to believe that any goods liable to confiscation or any documents or books or things, which, in his opinion, shall be useful for or relevant to any proceedings under the Act, are secreted. On fo....
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....trate or Chief Judicial Magistrate to grant a warrant to search for a document, parcel or other thing in the custody of the postal or telegraph authority." "94. Search of place suspected to contain stolen property, forged documents, etc.- (1) If a District Magistrate, Sub-Divisional Magistrate or Magistrate of the first class, upon information and after such inquiry as he thinks necessary, has reason to believe that any place is used for the deposit or sale of stolen property, or for the deposit, sale or production of any objectionable article to which this section applies, or that any such objectionable article is deposited in any place, he may by warrant authorise any police officer above the rank of a constable- (a) to enter, with such assistance as may be required, such place, (b) to search the same in the manner specified in the warrant, (c) to take possession of any property or article therein found which he reasonably suspects to be stolen property or objectionable article to which this section applies, (d) to convey such property or article before a Magistrate, or to guard the same on the spot until the offender is taken before a Magistrate, or otherwise t....
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....ling to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do. (5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it. (6) The occupant of the place searched, or some person in his behalf, shall, in every instance, be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person. (7) When any person is searched under sub-section (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person. (8) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have c....
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....fying in such writing, so far as possible, the thing for which search is to be made, search, or cause search to be made, for such thing in any place within the limits of such station. (2) A police officer proceeding under sub-section (1), shall, if practicable, conduct the search in person. (3) If he is unable to conduct the search in person, and there is no other person competent to make the search present at the time, he may, after recording in writing his reasons for so doing, require any officer subordinate to him to make the search, and he shall deliver to such subordinate officer an order in writing, specifying the place to be searched, and so far as possible, the thing for which search is to be made; and such subordinate officer may thereupon search for such thing in such place. (4) The provisions of this Code as to search warrants and the general provisions as to searches contained in section 100 shall, so far as may be, apply to a search made under this section. (5) Copies of any record made under sub-section (1) or sub-section (3) shall forthwith be sent to the nearest Magistrate empowered to take cognizance of the offence, and the owner or occupier of the pla....
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....on in FORM GST INS-03 that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of such officer. (5) The officer seizing the goods, documents, books or things shall prepare an inventory of such goods or documents or books or things containing, inter alia, description, quantity or unit, make, mark or model, where applicable, and get it signed by the person from whom such goods or documents or books or things are seized. 140. Bond and security for release of seized goods.- (1) The seized goods may be released on a provisional basis upon execution of a bond for the value of the goods in FORM GST INS04 and furnishing of a security in the form of a bank guarantee equivalent to the amount of applicable tax, interest and penalty payable. Explanation. For the purposes of the rules under the provisions of this Chapter, the applicable tax shall ― ‖ include central tax and State tax or central tax and the Union territory tax, as the case may be and the cess, if any, payable under the Goods and Services Tax (Compensation to States) Act, 2017 (15 of 2017). (2) In case the person to whom the goods were released provisionally....
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....e of panchas, a copy whereof has been produced for the perusal of this court. In terms of the panchnama, on 11.10.2019, in the afternoon, the officers searched the residential premises of the petitioner; and the books of accounts and other documents which they found were brought to the main room, which included the bank pass-books and cheque books, etc. of the family members. At about 4:02 pm, the officers asked the parents of the petitioner to present the petitioner; whereupon they had made a phone call to him and stated that he was not picking up the phone. Thereafter, they recorded statements of the parents of the petitioner in question-answer form. It is recorded in the panchnama that at 4:45 pm, upon asking the mother of the dealer (petitioner) to keep the dealer present and upon making her to listen the recording of her phone call, she behaved in an inappropriate way and said that every mother lies to protect her son and that even if she lies, what is wrong with it. It is further recorded that the dealer's mother, in his presence as well as in the presence of panchas and officers, said that every person sitting there must have done something wrong. Thus, the dealer's mother c....
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....ealer comes at night, his statement should be recorded. 16.1 At 9:15 on the next morning, it is recorded that at night, the family members again tried to contact the dealer on his mobile phone, but his phone was found to be switched off. Thereafter, the family members were again interrogated for some time and later, they were allowed to go to sleep. It is further recorded that on the next day, at 7:00 am, the son had gone to school. [Thus, it appears that even after 9:35 at night the family members of the petitioner were interrogated.] 16.2 At 10:05, it is recorded that the Investigating Officer of the earlier day having returned and having relieved the panchas and officer R.B Dodiya, the new officer and panchas have arrived at the spot. At 01:55 pm, it is recorded that during the course of search, they recorded the statements of the dealer's wife Shrimati Mamtaben and her daughter Honey in question-answer form and asked them as to where the dealer was and as to whether they had any news about him. However, they had informed that till then, they had no news about the dealer. At 8:05 pm, it is recorded that after resting his (the petitioner's) father's statement was recorded in ....
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....nal about her son and hence, they consoled her and explained to her that this is part of a Government inquiry and after pacifying her, advised her to rest peacefully. 16.4 On 14.10.2019, it is recorded that the dealer's father sought permission to go downstairs to fetch milk and such permission was granted. At 8:45 am, the dealer's mother sought permission to go to the temple and such permission was granted. At 10:45 am, the dealer's mother sought permission to go to some place for returning the clothes brought for Navratri celebrations, which was granted and she returned after 15 minutes. It is recorded that on 14.10.2019, the Investigating Officer Shri Rabari had presented himself and had taken charge of the proceedings. 16.5 The proceedings of the other days are similar in nature and do not reflect search of any kind having been carried out, but show that the officers have remained in the house and have kept surveillance over the members of the house. All that is recorded is when, where, why, at what time and for how long any family member went out of the premises and that time and again the family members were asked as to whether they had any information about the petitione....
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....o mention as to what the officers and panchas and SRP constable did inside the residential premises of the petitioner throughout the day, except for having recorded the statements of the family members of the petitioner at different times of the day. Nothing is stated as regards where the members of the search party stayed during the course of the day and where they slept at night. 16.9 It may be noted that on 18.10.2019, this court passed an order in the following terms: "Mr. Chetan Pandya, learned advocate for the petitioner has vehemently assailed the action of the respondents by submitting that the officers of the respondents have camped inside the house of the petitioner since 11.10.2019 wherein his family members are residing and that the family members of the petitioner are virtually under house arrest. Issue notice returnable on 21st October, 2019. Direct service is permitted today." 16.10 Thereafter, on 18.10.2019, at 4:30 pm, it is recorded that at the site upon hearing the recording from the mobile phone of Pareshbhai's mother, in her recording (7.10.2010, 6:52 pm) of 4 minutes 13 seconds it could be heard that the office record was kept at Harishbhai's house, aft....
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.... premises of the petitioner. 18. The entire action of the search party after the first day, i.e. from 12.10.2019 to 18.10.2019, was, therefore, illegal, invalid and not backed by any provision of the GST Acts. Moreover, it is only after this court issued notice on 18.10.2019, that the search was brought to an end on the ground that from the recording of the petitioner's mother of 7.10.2019, they could find out the place where certain accounting record was secreted. In this regard, it may be noted that from the contents of panchnama of the search proceedings as recorded hereinabove, it is apparent that the authorised officer on day one of the search itself, that is on 11.10.2019, had got a mirror copy of the data contained in the mobile phone of the petitioner's mother copied in a pen drive which was sealed in the presence of panchas and a working copy thereof was also made in a pen drive. Therefore, the details contained in the mobile phone of the petitioner's mother were already available with the respondents. For the purpose of hearing what was recorded therein, there was no necessity of staying at the searched premises. Moreover, from the contents of the panchnama, there is no....
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....quirements are thrown to the winds and in flagrant violation of the powers vested in them, the concerned officers have resided in the residential premises of the petitioner for eight days and confined and intimidated his family members. Thus, apart from the illegality of the continuation of the search proceedings, the conduct of the search officers in confining the family members of the petitioner to the house and of interrogating them time and again is nothing but a blatant abuse of powers. Since, the continued stay at the premises of the petitioner after 11th October, 2019 was not for search of the premises but to search for the petitioner and to obtain further information about where else he could have secreted documents, books or things relevant for any proceedings under the GST Acts, such continued stay was totally unauthorised as it was not backed by any statutory provision. As discussed hereinabove, the powers conferred by subsection (2) of section 67 of the GST Acts is to search for goods liable to confiscation, documents, books or things which in the opinion of the proper officer shall be useful for or relevant to any proceedings under that Act. 21. From the contents of ....
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....he basis of presumptions or past precedents under a previous enactment. If the common man is supposed to know the law and face penalty for any infraction thereof, the officers enforcing such provisions are required to be well versed with the statutory provisions and the scope and limits of their power and cannot take shelter behind ignorance of law to justify their illegal actions. 23. As noticed earlier, it has come on record that throughout the search, an SRP constable was present in the residential premises of the petitioner. As pointed out by learned amicus curiae, the assistance of the police can be taken for the purpose of entry into the premises if there is some reason to believe that there may be any kind of obstruction in conducting the search. In the present case, there is nothing on record to indicate that there was any resistance by the family members during the course of search warranting the presence of an SRP constable during the entire search proceedings. Therefore, it appears that the idea behind taking assistance of the SRP constable appears to be to intimidate and shame the family members, more so, in view of the prolonged presence of the search party at the re....
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....annot be countenanced. Reasonable belief exists if the information is not only trustworthy, but reasonable and sufficient in itself to warrant the conclusion that the provisions of section 132 were being violated. Because if the exercise of power is bad or unlawful from its inception, then it is not validated or changes character from its success. It would not, therefore, be asking too much from the authorities to comply with the basic requirements of the section before they are permitted to invade the secrecy of one's home. 24. At this juncture, reference may be made to the report dated 19.12.2019, that came to ultimately be submitted by the Chief Commissioner of State Tax pursuant to the directions issued by this court vide order dated 25.10.2019. The relevant extracts whereof are reproduced hereunder: "Prior to 01/07/2017, the search and seizure proceedings were carried out under the provisions of Section 67 of the Gujarat Value Added Tax Act, 2003. As per the provisions of section 67(7), the provisions of the Code of Criminal Procedure, 1973 relating to search are applicable to the search proceedings under the Gujarat Value Added Tax Act, 2003. As per section 88 of the sai....
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.... Criminal Procedure, 1973, (2 of 1974) relating to search and seizure, shall, so far as may be, apply to search and seizure under this section subject to the modification that sub-section (5) of section 165 of the said Code shall have effect as if for the word "Magistrate", wherever it occurs, the word "Commissioner" were substituted." The said provision coupled with the last para of form GST INS-1 specified in rule 139(1) which is reproduced as below, has been relied upon to record statements of persons present in the premises where search is conducted. "Any attempt on the part of the person to mislead, tamper with the evidence, refusal to answer the questions relevant to inspection/ search operations, making false statement or providing false evidence is punishable with imprisonment and /or fine under the Act read with section 179, 181, 191 and 418 of the Indian Penal Code." Taking into consideration the above provisions, the departmental authorities have been recording statements during search. Further, for the purpose of ascertaining truth and real facts of the case, investigation is carried out as was done under the Gujarat Value Added Tax Act, 2003. In this case also....
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.... a perusal of the contents of the report it appears that according to the Chief Commissioner under the GVAT Act, statements of persons present at the search premises were being recorded. The Chief Commissioner has placed reliance upon the provisions of section 88 of the Gujarat Value Added Tax Act, 2003 which relates to authorisation to investigate; overlooking the fact that in the present case the authorisation was for search and seizure and not investigation inasmuch as recording of statements under section 161 of the Code finds place in Chapter XII thereof which pertains to "Information to the police and their powers to investigate" and not under the provisions of the Code relating to search and seizure. Be that as it may. At best, giving benefit of doubt to the concerned officers, such defence may be accepted, namely that they were under the impression that statements of family members could be recorded during the course of search. That however, does not justify the stay at the residential premises of the petitioner for eight days, despite the fact that the search for documents, books and things was over on the very first day. Moreover, even after the search was over, it was al....
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....dance with the law and only for the purposes for which the law authorises it to be exercised. In the facts of the present case, the power under sub-section (2) of section 67 of the GST Acts has not only not been exercised strictly in accordance with law, but has also not been exercised for the purposes for which the law authorises it to be exercised, namely that though the power was to be exercised for carrying out search and seizure of goods liable to confiscation, documents, books or things at the place in respect of which the authorisation of search was given, the search was converted to a search for the dealer and into an investigation to find out other places where documents, books or things could have been secreted, which was beyond the scope of the powers vested in the authorised officer. 26. Article 21 of the Constitution of India reads thus: "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." In the facts of the present case, the family members of the petitioner have been deprived of their personal liberty not only by being confined in the residential premises an....