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Background

Inspection, Search, Seizure and Arrest for prevention and investigation of offence was for the first time conferred under the Code of Criminal Procedure and since search and seizure is a process exceedingly arbitrary in character, stringent statutory condition was imposed on the exercise of the power. Power of search and seizure was a necessary power in the interest of the community and without it, the process of law enforcement might suffer to the detriment of public interest. These measures are provided in the statute to prevent the evasion of tax.

Further, Article 21 of the constitution says right to life includes right to livelihood and infringement on that should be with utmost care and that is why lots of precaution taken while initiating search. The search warrant at one time was very generally abused and those abuses led to the adoption of the constitutional provision prohibiting unreasonable search and seizure. The Assessing officers are duty bound to do what they like but not on whims and fancy of their choice, they have to do according to law. All the Act, Income Tax Act, Erstwhile Central Excise Act and Customs Act, Every State Law and Now Goods and Services Tax Act make provision relating to inspection, search and seizure. The Sections 67 to 72 of GST Act makes provision in this regard. 

Section 67 - Power of Inspection, Search and Seizure

The term 'search' as defined in Law dictionary, denotes an action of a government machinery to go, look through or examine carefully a place, area, person, object etc. in order to find something concealed or for the purpose of discovering evidence of a crime. The search of a person or vehicle or premises etc. can only be done under proper and valid authority of law. Seizure follow search. Law Lexicon dictionary, defined seizure as the act of taking possession of property by an officer under legal process.

Search and Seizure provisions can be found in various Indian legislations which give powers to the competent authority to collect evidence in relation to violation of the legislation concerned. Reason for having the provision of search and seizure is to give jurisdiction to the authority to conduct a search and seize the evidence. At the same time, it gives a protection, or safeguards the interest of the common man from being violated by the excesses of the authority having powers to search or to seize.  The authorities generally are entrusted with the power to perform searches and seizures of persons and their belongings, and occasionally use force in their duty. But this power must be exercised with utmost caution and within the boundaries of the law. When the authorities exceed those boundaries they jeopardize the admissibility of any evidence collected for prosecution. While performing the powers of search and seizure, at each point, reporting to a senior responsible officer is mandatory, so that no officer acts in an arbitrary way. For a legal seizure there should be reasonable belief in mind of the seizing officer about the liability of the goods for confiscation.

The statutory power of search and seizure and the regulation thereof by the statue is conferred under certain sections of the Code of Criminal Procedures. Sub-section 67(10) provides that the provision of code of criminal procedure relating to search and seizure shall apply to search and seizure under this Act. Cr.P.C. 1973 provides for law relating to criminal procedure in India. It gives a complete law from constitution of criminal courts & offices to supervision, remission and commutation of sentences. An important procedure in criminal justice administration relates to the arrest and compelling production of things and for which even search and seizure is authorized. Constitution barriers have been very generally erected against unreasonable search and seizure for forbidding of unreasonable search and seizures and specifying certain particulars to be observed before conducting search and seizure and issuing search warrants.

The officer concerned has to act according to the rules framed and procedure laid down. Any non-compliance of such requirement, namely the non-existence of reasonable belief before search and seizure, has been viewed very adversely by the Courts. For instance, The Supreme Court in several judgments has observed that the existence of reasonable belief is mandatory before the search can be held as valid. Courts have come down heavily against search and seizure on the basis of mere fishing expeditions. What constitute a reasonable or unreasonable search and seizure in any particular case is purely a judicial question determinable from a consideration of the circumstances involved, including the purpose of the search, the presence or the absence of the probable cause, the manner in which search and seizure was made, the place or things searched, the character of the article procured, the nature and importance of the crime suspected.

Sec 68 - Inspection of Goods in movement

The power to inspect the Goods in movement is conferred by Section 68 of CGST Act, 2017. The section requires the person in charge of a conveyance carrying any consignment of goods of value exceeding such amount as may be specified to carry with him such documents and such devices as may be prescribed.

Sec 69 - Power to arrest

The provisions for arrest are created to tackle the situations created by some unscrupulous tax evaders. These may appear very harsh but necessary for efficient tax administration and also act as a deterrent and instil a sense of discipline. The provisions for arrest have sufficient inbuilt safeguards to ensure that these are used only under authorization from the Commissioner. Beside this, the GST law also stipulates that arrest can be made only in those cases where the person is involved in offences specified for the purposes of arrest and the tax amount involved in such offence is more than the specified limit.                      

The provision of Indian Penal Code should be kept in mind while authorizing and using the power of arrest under GST since the matter is very sensitive. It should not be used as routine affairs. The Provision of Criminal Procedure must be adhered to and in that case the arresting officer must have the knowledge of code of criminal procedure, 1973.

Sec 70 - Summon

Summon issued to taxpayers when an enquiry in underway for recording statements or for collecting evidences. It is the most democratic way in which the department seeks to elicit information from the assessee. It's can be view as an advantage to an assessee as an opportunity is given to him to place their side of story in an open, friendly and transparent manner.  It would be helpful to read and be familiar with the exact nature of responsibility of acceptance of service of summons and of making statements in response to a summons. The Procedure related to summon had led down under CPC Act and reference may be had to Chapter X and XI of Indian Penal Code. Understanding the legality of these matters will assume significance in attending to such Matters of inquiry before a judicial officer.

Sec 71 - Access to Business Premises

Access to Business Premises empowers the proper officer to have access to any place of business of a registered person to inspect books of account, documents, computers, computer programs, computer software and such other things as may be required and which may be available at such place, for the purposes of carrying out any audit, scrutiny, verification and checks as may be necessary to safeguard the interest of revenue. Experts are apprehensive of far reaching of far reaching consequences of this section which is potentially capable of misuse. Strong understanding of the legal remedies available will equip in attending to these inspections.

Sec 72 - Officers to assist proper officers

The certain class of officers as specified requires to assist the proper officers in the implementation of this Act when called upon to do so by the Commissioner.

Conclusion:

The assessee while being polite should be firm of their legal rights as he has the right to expect from officer to do his duty within the parameters of law at the time of search and seizure as his right under constitution are protected. Presence of mind along with the courage and conviction during time to search plays an important role and will have flow and effect to succeed later. For instance, officers has right to shoot a question and assessee has the obligation to answer, once an obligation to answer come his duty is to record it. If he didn't do this, assessee can refuse to proceed as it is his legal entitlement.

On the other side, there are areas in search and seizure such as when officer's lapse on documenting the things properly or bypass the specified legal procedure, where the professional steps in and try to find fault. Every search and seizure is an opportunity for the professionals to grow.


 

Published by

Nikhil Bohra
(Practice)
Category GST   Report

3 Likes   7 Shares   3258 Views

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