Many of the assessee are worried whether they can avail the scheme specified under SVLDRS or if they are ineligibile pursuant as if provision of Sec 125(1)(e) Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 will be applicable on them.
The main point of concerned is the notices they have received wrt verification of Service tax vs 26AS after the data sharing between CBDT and CBEC. Whether those notices/ verifications could be called enquiry or investigation.
Let us take it little forward…
Sec 121(m) of Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 defines ‘‘enquiry or investigation’’, under any of the indirect tax enactment, shall include the following actions, namely:—
(i) search of premises;
(ii) issuance of summons;
(iii) requiring the production of accounts, documents or other evidence;
(iv) recording of statements;
Though most of us are very clear about (i), (ii) and (iv) but requiring the production of accounts, documents or other evidence is the grey area.
The indirect tax statutes, namely, the Customs Act, 1962, Central Excise Act, 1962 and Finance Act, 1994 have provisions which empowers the designated officers to summon witnesses to give evidence and/or to produce documents.
Section 108 of Customs Act, 1962 /Section 14 of the Central Excise Act, 1944 gives powers to the Customs Officer/Central Excise officer to call upon a person either to give evidence or produce documents which would have a vital bearing in the enquiry including adjudication proceedings.
Sec 14 of Central excise ( applicable to both central excise and Service Tax) read as below
Power to summon persons to give evidence and produce documents in inquiries under this Act.
(1) Any Central Excise Officer duly empowered by the Central Government in this behalf, shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making for any of the purposes of this Act. A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned.
(2) All persons so summoned shall be bound to attend, either in person or by an authorised agent, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and to produce such documents and other things as may be required :
Provided that the exemptions under Sections 132 and 133 of the Code of Civil Procedure, 1908 (5 of 1908) shall be applicable to requisitions for attendance under this section.
(3) Every such inquiry as aforesaid shall be deemed to be a “judicial proceeding” within the meaning of Section 193 and Section 228 of the Indian Penal Code, 1860 (45 of 1860).
Thus sub section 3 of sec 14 of Central Excise, read as Every such inquiry as aforesaid shall be deemed to be a “judicial proceeding” within the meaning of Section 193 and Section 228 of the Indian Penal Code, 1860 (45 of 1860).
Now we have to read the sec 193 of the Indian Penal Code, 1860 (45 of 1860).which read as :-
“Punishment for false evidence.—Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine, and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine. “
And Sec 228 of the Indian Penal Code, 1860 (45 of 1860) read as “Intentional insult or interruption to public servant sitting in judicial proceeding.—Whoever intentionally offers any insult, or causes any interruption to any public servant, while such public servant is sitting in any stage of a judicial proceeding, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.”
So the litmus Test to check whether the enquiry falls under the Sec 193/ sec 228 of the Indian Penal Code, 1860 (45 of 1860), and believe me many cases will not fall under this category of enquiry and the ineligibility provision of Sec 125(1)(e) Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 will not be applicable. One can also refer CBEC vide Circular No. 185/4/2015-ST, Dated: June 30, 2015
CA Pawan Kumar Periwal
Author can be reached at pawan@danspark.co.in or 9771491501
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