Hello readers, now -days everybody asked me can CA/Tax practitioners be arrested under Section 69 of CGST Act 2017 or prosecuted u/s Section 132 of CGST Act 2017 so let us discuss in detail –
Section 69 of CGST Act 2017: Power to Arrest-
(1) Where the Commissioner has reasons to believe that a person has committed any offence specified in clause (a) or clause (b) or clause (c) or clause (d) of sub-section (1) of section 132 which is punishable under clause (i) or (ii) of sub-section (1), or sub-section (2) of the said section, he may, by order, authorise any officer of central tax to arrest such person.
Analysis– Now Section 69 (1) focus on -Where commissioner has reasons to believe that person has committed any of specified offences as specified in Section 132 then only person can be arrested..
Only when commissioner has reason to believe not mere suspect that person has committed any of specified offences then only that person can be arrested. It means person who has committed offence only that person can be arrested and also if sufficient evidence available and not on basis of mere suspicion. Section 69 gives power to arrest only to person who has really committed offences and commissioner have reason to believe that person is really punishable .So Can CA /Tax practitioners be arrested under Section 69 ?
In my opinion, Section 69 does not give power to arrest CA//Tax practitioners…
Section 132- Punishment of certain offenses-
(1) Whoever commits, or causes to commit and retain the benefits arising out of, any of the following offences,
(a) supplies any goods or services or both without issue of any invoice, in violation of the provisions of this Act or the rules made thereunder, with the intention to evade tax;
(b) issues any invoice or bill without supply of goods or services or both in violation of the provisions of this Act, or the rules made thereunder leading to wrongful availment or utilisation of input tax credit or refund of tax;
(c) avails input tax credit using the invoice or bill referred to in clause (b) or fraudulently avails input tax credit without any invoice or bill;
(d) collects any amount as tax but fails to pay the same to the Government beyond a period of three months from the date on which such payment becomes due;
Analysis: Finance Act 2020 –Amendment is made in Section 132 of CGST Act 2017 that any person who commits or causes to commit and retain the benefits arising out of offenses stated in in section 132.
Section 132 states that any person who commits or helps any person to commit and retain the benefits arising out of offenses…
Point to remember here is that ‘’commit and retain the benefits …’’-person must have committed and retained the benefits also then only prosecuted u/s 132. So my question here is that can professional fees charged by CA /Tax practitioners for filling returns means retaining the benefits arising out of offenses.
CA /Tax practitioners can be prosecuted only if two conditions are satisfied-
- Commissioner has reason to believe that he has committed a specified offense and sufficient evidence available against him.
- He has retained the benefits out of it.
Merely charging professional fees does not mean you have retained benefits and prosecuted for that offense.
There is difference between arrest and prosecution…
Person is arrested u/s 69 of CGST ACT when his offense is established and prosecuted u/s 132 of CGST ACT -means punished for offense which he has committed. It means proceedings are initiated against person u/s 132 of CGST act 2017.
That s all for today… any query related to income tax/GST can be posted at [email protected].
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