TaxTMI 
TaxTMI 
2020 (1) TMI 973
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....ises of the petitioner for in all eight 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....
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....f business of the taxable person or the persons engaged in the business of transporting 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 proceedi....
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.... have been seized by a proper officer, or any officer authorised by him under sub-section (2), he shall prepare an inventory of such goods in such 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, t....
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....d premises, the first respondent Commissioner of State Tax, Ahmedabad shall carry out a proper inquiry in the matter and submit a report before this court on or before 13th November, 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 spi....
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....cerned had resorted to the powers of search and seizure as contained therein. Insofar as the statements of the members residing in the searched premises are concerned, reference was made to section 161 of the Code. 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.....
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....ence by such visits. The majority did not go into the question whether these visits violated the "right to privacy". But, Subba Rao, J. while concurring that the fundamental right to privacy was part of the right to liberty 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 referr....
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....a piece of subordinate legislation) and hence it could not be said in this case that Article 21 was violated for lack of legislative sanction. The law was very much there in the form of these Regulations. Regulations 853(1) and 857 prescribed a procedure 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 onl....
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....e found in any place within the limits of the police station and that such thing cannot, in his opinion, be otherwise obtained without undue delay. He has to record the grounds of his belief in writing and specify, so far as possible, the thing for which search is made. Section 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)....
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....sions of section 132 of the Income Tax Act, 1961, to point out that clause (iia) of subsection (1) thereof specifically permits search of any person who has got out of, or is about to get into, or is in the building or place, if the authorised person has reason to suspect that such 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 authoris....
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....earch for a human being. 8.9 It was submitted that unless specifically so authorised by the statute and the authorisation, no power is conferred on the search party to search a person. It was submitted that section 70 of the GST Acts empowers the proper officer to summon any person whose 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-sect....
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....useful or relevant to any proceedings under that Act is contained in a mobile phone, it is permissible for him to look into its contents. It was submitted that documents, books or things would also include a mobile phone and that while a person cannot be searched, anything that he has, can certainly 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 contrar....
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....erred to hereinabove, reference may be made to certain facts, as averred in the affidavit dated 24.10.2019 made by Shri Nathalal Maganlal Chauhan, the father of the petitioner, who has inter alia stated that the officers who had come to their flat for search were inquiring about the petitioner's presence till late in the evening and thereafter, 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)....
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.... (2) The Court may, if it thinks fit, specify in the warrant the particular place or part thereof to which only the search or inspection shall extend; and the person charged with the execution of such warrant shall then search or inspect only the place or part so specified. (3) Nothing contained in this section shall authorise any Magistrate other than a District Magistrate 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,....
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....about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency. (4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing 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,....
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....nt." "165. Search by police officer.- (1) Whenever an officer in charge of a police station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is in charge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying 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 offic....
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....tion 67, the proper officer or an authorised officer shall make an order of seizure in FORM GST INS02. (3) The proper officer or an authorised officer may entrust upon the owner or the custodian of goods, from whose custody such goods or things are seized, the custody of such goods or things for safe upkeep and the said person shall not remove, part with, or otherwise deal with the goods or things except with the previous permission of such officer. (4) Where it is not practicable to seize any such goods, the proper officer or the authorised officer may serve on the owner or the custodian of the goods, an order of prohibition 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.- ....
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....de the residential premises to apprehend an accused as and when he returns home. The powers vested in the officer armed with a search warrant are limited to searching the entire premises. Once the premises are searched, the search party would have to leave the premises and cannot wait there indefinitely for days on end under the expectation that the person whom they are searching for may return home or may contact his family members. 16. In the facts of the present case, the authorised officer was authorised to search only the premises. The nature of the search conducted by him is discernible from the panchnama of the search proceedings drawn by the authorised officer in the presence 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 c....
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....anchas, whereupon she had refused to go and had said that she was worried that her son may take a wrong step. At 8:45 pm it is recorded that at the dealer's place the statement of his mother in question - answer form and the statement in question - answer form of Alpesh Wadher who was running Hollywood shoes was recorded. [Thus, despite the fact that the petitioner's mother, an elderly lady, was suffering from ill health at 8:05 pm, her statement came to be recorded by 8:45 pm.] At 9:35 pm it is recorded that another officer came to relieve the officer who was present at the premises and he was acquainted with the proceedings conducted throughout the day and was told that in case the dealer 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....
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....vegetables and clothes given for ironing and had returned in half an hour along with those things. At 6:30 pm, it is recorded that upon asking the Pareshbhai's family members as to whether there was any news about him, but they had said that no information was received. Thereafter, without recording the time, it is recorded that another officer A.B. Parmar had arrived to relieve the officer who was at the spot during daytime and the charge was handed over to him. At 10:30 pm, it is recorded that the dealer's mother sought permission to go down-stairs, and she was permitted to go and she returned after 15 minutes with vegetables (potatoes). It is further recorded that she had become emotional 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....
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....othing in the panchnamas, to show the presence of any female officer during the night time. Moreover, on each day, in the morning shift and night shift, there were two different panchas from different localities residing in the premises and it also appears that an SRP constable was also present throughout. Thus, the family members of the petitioner were constrained to put up with different sets of strangers in their residential premises throughout the day and night for eight days. 16.8 While it is an admitted position that the officers along with the panchas and the SRP constable were inside the residential premises during the course of the entire search, in the entire panchnama, there is no 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. Chet....
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....out him. Since the books of accounts of Pareshbhai Chauhan's office were found from some other place, the higher officer was informed about it. The intention behind staying at that place and searching the place was that Pareshbhai remains present and produces the books of accounts. Out of which, a part of his accounting record having been found from some other place, the higher officer was informed and after recording the last statement of Pareshbhai Chauhan's father Nathabhai Chauhan, the search of the residential premises was completed at 9:15 hours at night. 17. This, in sum and substance is the nature of the proceedings conducted by the respondents from 11.10.2019 to 18.10.2019 at the residential 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,....
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.... empowers the authorised officer to confine family members of a dealer in this manner and to interrogate them at all times of the day and even late at night as has been done in this case. Even the elderly lady was not spared and despite not being well was interrogated at night, that too, without any such powers being vested in the authorised officer. As rightly pointed out by the learned amicus curiae, the only power to record statements is traceable to section 70 of the GST Acts which requires the concerned officer to issue summons to the person whose statement is sought to be recorded by following due procedure in accordance with law, and thereafter record his statement. But in this case all statutory requirements 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....
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....he concerned officers were acting on the basis of past precedent also appears to be a specious plea, inasmuch as, even under the previous enactments such action was not permissible. Besides, no instance has been pointed out to show that at any point of time, a search case was converted to a search for a person and the officers concerned resided in residential premises of a dealer in the manner that has been done in this case. The action of the respondents, therefore, cannot be countenanced. 22. Besides, the GST Acts are new enactments. Officers acting under the relevant provisions are required to study the scope of their powers under the statutory provisions under which they are acting and cannot act on the 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 ....
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....obile phone regarding where some books of account and other documents were secreted, but the end does not justify the means and does not validate the unauthorised and illegal action of the concerned officers. The Allahabad High Court in Dr. Nand Lal Tahiliani v. Commissioner of Income-tax (supra) has held that the dwelling house of a person is a high fortress. Every householder, the good and the bad, the guilty and the innocent, is entitled to the protection designed to secure the common interest against unlawful invasion of the house. Ransacking of the house and the act of taking away the property is an inroad on citizens' right of privacy, one of the values of civilization. Any unwarranted intrusion of it cannot 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 ar....
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....Gujarat Value Added Tax Act, 2003 as well as for pre 01/07/2017 transactions. After introduction of the Gujarat Goods and Services Tax Act 2017, the department had carried out search and seizure proceedings in number of cases under the Gujarat Goods and Services Tax Act - 2017 in exercise of the power conferred under section 67 of the said Act till date. As per the provisions of section 67(1) of the Gujarat Goods and Services Tax Act - 2017, the provisions of the Code of Criminal Procedure, 1973, relating to search and seizure, apply to search and seizure under the said Section. For the sake of convenience section 67(10) of the Gujarat Goods and Services Tax Act - 2017 is reproduced here in below. "The provisions of the Code of 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 ....
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....s possible and in case of noncompletion within twenty-four hours, stringent watch on such proceedings will be kept by higher authorities and a permission if higher authorities shall be obtained. Departmental instructions shall be followed during the search and seizure proceedings at the residential premises which have been issued vide letter outward no 2336 dated 09/12/2019 to the field formation. The department is open to issue such further instruction for search and seizure proceedings at residential premises as may be required." 25. Thus, the stand of the Chief Commissioner in the above report is that in view of past precedent under the Gujarat Value Added Tax Act, 2003, the officers under the GST Acts have recorded statements of the family members of the petitioner. On 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 authorisatio....
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....ails to understand as to what the officers concerned were doing at the residential premises of the petitioner for a whole week, along with two panchas and an SRP Constable when the search was concluded on day one. Such action on the part of the respondents is abhorrent and cannot be countenanced. No provision of the Code of Criminal Procedure, for investigation, search or seizure, empowers a police officer to remain a moment longer at any premises once the search is over. At this juncture, it may be apposite to note that the Supreme Court in Income-tax Officer v. Seth Brothers (supra) has held that since by the exercise of powers of search and seizure a serious invasion is made upon the rights, privacy and freedom of the taxpayer, the power must be exercised strictly in accordance 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....