CA Vinod Kaushik
Brief introduction:
Summons as the name suggest means to call someone to submit relevant documents /information and most important to tender his statement to the issuing officer.
In GST summons are issued under section 70 of the Act of which (1) says “The proper officer under this Act 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 in the same manner, as provided in the case of a civil court under the provisions of the Code of Civil Procedure, 1908 (5 of 1908)”.
The section has been worded in such a manner that it gives absolute powers to the issuing officer to summon any person whose attendance he consider necessary in connection with any enquiry. So the statute has given power to call an accused, co-accused and persons assisting them during their business transactions.
The most critical part of summons is that it shall be treated in the same manner as it is done in the case of civil court under the provisions of the Code of Civil Procedure, 1908 (5 of 1908)”. This implies as per subsection (2) that it shall a judicial proceeding within the meaning of section 193 and 228 of Indian Penal code.
Failure to attend summon
The consequences in case of non-compliances shall be that the proper officer may file a complaint with jurisdictional Court. The Court after hearing the person concerned may award punishment for non-compliances of summon as per provisions of IPC.
Practically when a complaint is filed with Hon’ble Court for non-attendance of summon the concerned Court sometime gives fresh opportunity for attendance of summon and submission of relevant documents.
As per section 193 of IPC giving of false evidences in respect of judicial proceedings is punishable with imprisonment up to 7 years and fine.
Section 228 talks about interruption of public servant sitting in a judicial proceeding which is punishable with imprisonment up to 6 months and/or fine.
Always advisable to attend summon:
In most of the cases the person who receives summon feels very uncomfortable as it is an invitation of some trouble. Practically what should be our approach when we receive summon under section 70 of CGST Act, 2017?
The person who has received summon must verify whether it contains DIN and signed by at least the officer of Superintendent Rank. This condition of DIN is applicable only for the officers of CBIC (Central Board of Indirect Taxes and Customs) and not applicable for State GST Officers. The officer below the rank of Superintendent (Inspectors) cannot issue summon as per Circular No. 3/3/2017 dated 05th July 2017.
It is also important that if you are not able to attend summon due to any bonafide reasons please seek extension in writing along with reasons. It is most common practice that you can seek few extensions in case of any genuine difficulty like illness, non-availability but ultimately summon has to be attended.
Admissibility of statement as an evidence
The statement tendered under section 70 is admitted as an evidence under section 25 of Indian Evidence Act, 1872. Whereas statement tendered to police officers cannot be treated as an evidence under Evidence Act, 1872.
This has been upheld by Hon’ble Apex Court in the case of Romesh Chandra Mehta vs. State of West Bangal [(1969) 2 SCR 461] that Custom officers are not police officers. The recent celebrated judgment of Hon’ble Apex Court in the case of VIJAY MADANLAL CHOUDHARY & ORS. Versus UNION OF INDIA & ORS [2022 Live Law (SC) 633] held that the ED officers are not police officers hence statement recorded by them cannot be hit by Articles 20(3) and 21.
It is very clear that statement made before GST officer’s is well accepted as an evidence before Courts and its holds value in the eyes of law.
Retraction of statement
Retraction of statement is a remedy of withdrawal available to the person who has tendered statement before GST officers. If in the case of a person it is felt that there is undue pressure or coercion statement given can be withdrawn.
The timing of withdrawal are very important because a statement withdrawn post issuance of show cause notice may not be accepted as valid by Hon’ble Courts.
It is precisely held by Hon’ble Delhi High Court (Rakesh Kumar Garg v. CCE 1997 (89) ELT 646 SC) that retraction of statement done immediately cannot be ignored but if statement is taken back after a long time back it may be treated as afterthought and held to be invalid.
Recent instructions issued by CBIC Instruction No. 03/2022-23
There were number of instances reported to Board about harassment / misuse of power by the officers issuing summon. Finally CBIC has issued guidance taking cognizance of such misuse of blatant power.
We have summarized all such instructions in brief for better understanding of readers.
1. Summon issuing Authority (Superintendent) has to ensure prior written approval of Deputy / Assistant commissioner with the reasons for issuance of summon. If prior permission is not possible an oral permission by phone can be taken but post issuance it has to be regularized.
2. Earlier Department was issuing summon without naming the person against whom case was investigated. For instance if Mr. A is main accused of fake invoice but a summon is issued to his supplier Mr. B , in this case if summon is issued to Mr. B it is to be categorically mentioned that he is supplier of Mr. A against whom case is under investigation stage.
3. Summons should not be issued to call statutory information such as GSTR-3B, GSTR-1 and GSTR-2A which are already available on GST portal online.
4. Some officers were issuing summons directly to the top management of companies/ PSU’s such CMD/MD/CEO/CFO which are not directly involved in taxation matters. Instructions are issued to call concerned persons such as Tax Managers etc. which are directly involved in decision making process of taxation matters. In case of strong apprehension for involvement of senior management they can be summoned but as an exception.
5. Summons should not be issued multiple times if delivery is not happening at destined location. Summons should be issued after a reasonable interval and in case of failure to attend, complaint can be filed with local Court alleging nonattendance of summon.
6. Certain class of persons do not appear in public such as women or privileged class. These class of persons are also exempted under section 132, 133 of CPC.
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