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Analysis of arrest provisions under GST

CA SUDHIR HALAKHANDI 
on 10 August 2020

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What is the meaning of arrest

Taking into custody of a person under some lawful command or authority. In other words, a person is said to be taken and restrained of his liberty by power or colour of Lawful warrant.
- From various Judicial Pronouncements.

When to arrest

  • To ensure proper investigation of the case.
  • To prevent such person from absconding.
  • To prevent the possibility of tempering the evidence.
  • Intimidating or influencing the witnesses.
Analysis of arrest provisions under GST

Power of arrest

69(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.

69(1) in simple language

Commissioner has reason to believe that :-

  • a person has committed any offence which is specified in clause (a) or Clause (b) or Clause (c) or Clause (d) of Section 132(1) and
  • which is punishable under Section 132(1)(i) or 132(1)(ii) or 132(2).

He may by order, authorise any officer of central tax to arrest such Person

Offences for arrest

Section 132(1) (a)

Supplies any Goods or Services or both without issue of Invoice in violation of provisions of Act and Rules , with a intention to evade Tax.

Section 132(1) (b)

Issue any invoice without supply of goods or services or both in violation of Provisions of this Act and rules leading to wrongful availment or utilisation of input credit or refund of Tax.

Section132(1)(c)

Avails input credit using such invoices or bill referred to in clause (b)

 

Section132(1)(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 payment becomes due.

When these offences can lead to arrest?

If these offences are punishable under section 132(1)(i) or 132(1) (ii) or 132(2).

132(1) (i): TAX EVASION ETC. EXCEEDS 5 CRORE

In cases where the amount of tax evaded or the amount of input credit wrongly availed or utilised or the amount of refund wrongly taken exceeds 5 crore rupees with imprisonment for a term which may extend to 5 years and with fine .

132(1) (ii): TAX EVASION ETC. EXCEEDS 2 CRORE BUT NOT 5 CRORE

In cases where the amount of tax evaded or the amount of input credit wrongly availed or utilised or the amount of refund wrongly taken exceeds 2 crore rupees but does not exceed 5 Crore rupees with a imprisonment for a term which may extend to 3 years and with fine

When these offences can lead to arrest 132(2)?

Second offence by a person who is already convicted under Section 132 for an offence then he shall be punishable for the second and every subsequent offences with imprisonment for a term which may extend to five years or with fine.

 

Sec 69(2): Cognizable Offence

When a person is arrested under section 69(1) for an offence which is mentioned under section 132(5) then the officer authorised to arrest the person shall inform such of the grounds of arrest and produce him before him before a Magistrate within twenty – four hours.

Section 132(5): Offences specified in Clause (a) to (d) of Section 132(1) which is punishable under Section 132(1)(i) shall be cognizable and non- bailable [i.e. exceeding 5 Crores]

Non Cognizable or bailable offence

As per Section 69(3)(a)

Where a person is arrested under sub-section (1) for any offence specified under Section 132(4) , he shall be admitted to bail or in default of bail, forwarded to the custody of the custody of the Magistrate.

Section 132(4)

Notwithstanding anything contained in the code of criminal procedure , 1973 (32 of 1974), all the offences under this Act, except referred to in Section 132(5) shall be Non Cognizable and bailable.

Power of the authorized officer in case of Non-Cognizable Offence

Section 69(3)(b):-

In case of Cognizable and bailable offence, the deputy commissioner or Assistant commissioner shall , for the purpose of relating to an arrested person on bail or otherwise have the same powers and subject to the same provisions as an office in-charge of a Police station.

Precautions to be taken while arresting

DK Basu Vs. State of West Bengal 1997(1)SCC 416 Hon. Supreme Court has issued following guidelines:-

1. Clear Identification of the Authorised Officers.

2. Arrest Memo- attested by witness either family member or respectable person of locality and counter signed by the arrestee.

3. The person arrested and detained shall have a right to inform to his one relative, friend or well wisher unless the witness of Arrest memo is a friend or relative of the arrestee.

4. The Time, Place of arrest and venue of custody to informed to next friend or relative of the arrestee , if he is living outside the city within 8 to 12 years.

5. The person arrested shall be informed about his right to inform his relative or friend as soon as he put under arrest or detained.

6. An entry must be made in the diary regarding arrest of person , the name of next friend of the persons informed about the arrest and the name of officer whose custody the arrestee is.

The arrestee should be examined at the time of arrest for major or minor injuries , at his request.

  • The arrestee should be medically examined for every 48 Hours during his detention.
  • The copies of all the documents including arrest memo should be sent to magistrate for his record.
  • The arrestee may be permitted to meet his lawyers during interrogation though not throughout the interrogation.
  • The police control room should be provided for the display of the arrest information within 12 hours of the arrest.

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