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2022 (5) TMI 1258 - GAUHATI HIGH COURT
Prinicipal Additional Director General, Directorate of Revenue Intelligence Guwahati, Senior Intelligence Officer, Directorate of Revenue Intelligence, Guwahati- Issuance of summons directly to the Managing Director of the company without calling for or summoning the other authorised representatives. Analysing the legality of summoning-Issuing of summons under section 108 of the Customs Act, 1962.
In the instant case, no material is available that there is a reasoned/logical view formed by the Department that the Petitioner assessee is not cooperating or that the presence of the Managing Director specific is required for the investigation for any reason.
The writ petition was disposed off by directing the departmental authorities issuing summons under section 108 of the Customs Act, 1962, not to issue summons directly to the Managing Director of the company but to issue the same to the authorised representative of the company in terms of the provisions of the Circular dated 10.10.1989.
Instructions were issued to comply with the terms of Circular dated 10.10.1989. There has to be an authorised representative of the Company to whom the summons be issued first and this step of summoning the top management and other directors of the company should be resorted to sparingly in cases where assesses/concerned are not cooperating or investigations are to be completed expeditiously.
It should not be used as a tool of bullying the top management of the Company to pay up the demands disputed by them. Further held in this case that the Collectors would be held personally responsible for enforcing these instructions within their authority/jurisdiction.
In this case the representatives of the company were found cooperating with the investigating authorities fully. The presence of the Managing Director of the Company concerned is required for the investigation for any reason.
Held by the hon'ble court, the Board of Directors of the petitioner Company shall authorize a competent person for the purpose and further summons be issued only to such authorized person.
In view of the above, the summon dated 27.04.2022 be not acted upon and in its place modified summons may be issued in the manner as provided above.
Hence excess executive powers are always open to the scrutiny of courts and the legal system under the constitutional scheme has always strived hard to protect the rights of the citizens.
Full Text:
Summons issuance to company management must target authorised representatives, not routinely the managing director absent necessity. Issuance of summons under section 108 should ordinarily be made to a Board authorised company representative; summonses to top management, including the managing director, are to be used sparingly only where representatives are non cooperative or there is demonstrable necessity. Administrative Circular guidance requires this sequence and places responsibility on departmental officers, including Collectors, to enforce these procedural limits. of Press 'Enter' after typing page number.
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