TaxTMI 
TaxTMI 
TaxTMI 
2024 (6) TMI 661
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....s implicit in the guarantee under Article 21 of the Constitution of India. 3. To speak or not to speak has been a dilemma for a person called for giving his statement before the Customs Officer, Central Sales Tax Officer, Police Officer etc. The implications are serious. Clause 3 of Article 20 of the Constitution of India provides that no person accused of any offence shall be compelled to be a witness against himself. The Constitutional guarantee against self-incrimination is however not a guarantee that the person exercising right to silence cannot be prosecuted in a Court. Under the Central Goods And Services Tax Act, 2017 (in short, "GST"), a person called for giving evidence or to produce a document or any other thing in any inquiry is under a duty to speak truth. Sub-section (2) to section 70 of the GST provides that every inquiry referred to in sub-section (1) shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code. The consequence is therefore that any person whose attendance is considered by the proper office necessary either to give evidence or to produce a document or any other thing in any inquiry under the....
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....atement, after which, the petitioner was arrested by the ED on 08.08.2023 at 5:30 a.m. It is not in dispute that the petitioner and the ED Officer left for the airport on 08.08.2023 at 7:00 a.m. from the office of the ED situated at Delhi; that the flight took-off at 10:00 a.m. on 08.08.2023; that the flight landed in Mumbai airport at 12:15 p.m. on 08.08.2023; and at 2:00 p.m., the petitioner and the ED Officer arrived at the Office of the ED in Mumbai. It is also not in dispute that at about 5:00 p.m., the petitioner was produced before the learned Special Judge, PMLA and the matter was taken up by the Court at around 5:15 p.m. 11. Having regard to the time-line and the facts, we are of the opinion that the time when the petitioner entered the Office of the ED, pursuant to summons under Section 50 of the PMLA, the petitioner was not kept in confinement, much less, detained. It is not in dispute that when Section 50 summons was issued, the petitioner was not an accused, inasmuch as, Section 50 (2) of the PMLA clearly states that the Director, Additional Director, Joint Director, Deputy Director or Assistant Director shall have the power to summon "any person" whose attendance is....
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....direct Taxes and Customs (2nd Edition) dated 31st March 2017 whereunder elaborate guidelines for (a) what are the guidelines for issue of summons and (b) what are the precautions to be observed while issuing summons are indicated. The related suggestions are as under: "Q 30. What are the guidelines for issue of summons? Ans. The Central Board of Excise and Customs (CBEC) in the Department of Revenue, Ministry of Finance has issued guidelines from time to time to ensure that summons Provisions are not misused in the field. Some of the important highlights of these guidelines are given below: i. summons are to be issued as a last resort where assesses are not co-operating and this section should not be used for the top management: ii. the language of the summons should not be harsh and legal which causes unnecessary mental stress and embarrassment to the receiver; iii. summons by Superintendents should be issued after obtaining prior written permission from an officer not below the rank of Assistant Commissioner with the reasons for issuance of summons to be recorded in writing; iv. where for operational reasons, it is not possible to obtain such prior written permission,....
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....utory records viz. GSTR-3B, GSTR-1 etc., which are available online in the GST portal. 2. As per Section 70 (1) of the CGST Act, summons can be issued by the proper officer to any person whose attendance is considered necessary either for giving evidence or producing a document or any other thing in an inquiry in the same manner, as provided in the case of a civil court under the provisions of Code of Civil Procedure, 1908 (5 of 1908). As per sub-section (2) of Section 70, securing such documentary and oral evidence under the said legal provision shall be deemed to be a "judicial proceedings" within the meaning of Section 193 and Section 228 of the Indian Penal Code (45 of 1860). While issuing of summons is one of the instruments with the Department to get/obtain information or documents or statement from any person to find out the evasion of the tax etc., however, it needs to be ensured that exercise of such power is done judiciously and with due consideration. Officers are also advised to explore instances when instead of resorting to summons, a letter for requisition of information may suffice. Previously in respect of legacy laws, the Board has sensitized the officers regardi....
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.... any exigency, the summoned person must be informed in advance in writing or orally. (ix) All persons summoned are bound to appear before the officers concerned, the only exception being women who do not by tradition appear in public or privileged persons. The exemption available to these persons under Section 132 and 133 of CPC, may be kept in consideration while investigating the case. (x) Issuance of repeated summons without ensuring service of the summons must be avoided. Sometimes it may so happen that summoned person does not join investigations even after being repeatedly summoned. In such cases, after giving reasonable opportunity, generally three summons at reasonable intervals, a complaint should be filed with the jurisdictional magistrate alleging that the accused has committed offence under Sections 172 of Indian Penal Code (absconding to avoid service of summons or other proceedings) and/or 174 of Indian Penal Code (non-attendance in obedience to an order from public servant), as inquiry under Section 70 of CGST Act has been deemed to be a "judicial proceedings within the meaning of Section 193 and Section 228 of the Indian Penal Code. Before filing such complaints....