Section 70 of GST – Power to summon persons to give evidence and produce documents
(1) 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.(2) Every such inquiry referred to in sub-section (1) shall be deemed to be a “judicial proceeding” within the meaning of section 193 and section 228 of the Indian Penal Code.
Analysis of this section
IntroductionThis provision deals with exercise of powers to issue summons for giving evidence and for production of documents or any other thing.Analysis In any inquiry which such officer is making for any of the purposes of this Act, the Proper officer shall have power to summon:
any person, whose attendance is considered 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
Every such inquiry referred to in sub-section (1) shall be deemed to be a “judicial proceeding” within the meaning of section 193 and section 228 of the Indian Penal CodeIt 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. Reference may be had to Chapter X and XI of Indian Penal Code. At the same time, Article 20(3) of our Constitution prohibits from a person being made to witness against himself. Therefore, avoidance of service of summons is unlawful but abstinence from making statements is not. Understanding the legality of these matters will assume significance in attending to such matters of inquiry before a judicial officer. Scope of word “Summon” under Sec 70 is for “Any Inquiry”. Authorised Officer is not empowered under Sec 70 to retain the documents for which summon were issued. It has been held by in T.T.V Dinkaran v. Enforcement Officer 1995 (80) E.L.T. 745 that where summon did not mention the nature of investigation therein, it will be valid since mentioning the details about investigation may alter the person concerned to manipulate his record.It may be helpful to read sections 24 to 30 of Indian Evidence Act, 1872 and note the jurisprudence available in this manner of gathering evidence. Person making the statement needs to establish that such statement was made under certain circumstances that it is NOT to be relied upon in further proceedings. Statements made that are considered NOT reliable by the person making it must lead evidence to support the assertion. It is permissible to presume statements are reliable unless withdrawn at the earliest opportunity in the remainder of the proceedings. Statements recorded under section 70 alone cannot form reliable evidence to support demand for tax in SCN. Experts also hold the view that since Proper Office will NOT file a Police Report (also called ‘charge sheet’) under 173 of Cr.PC but only a complaint under section 190(1)(a) of Cr.PC, the proceedings WILL NOT enjoy the benefit of section 24 to 30 of Evidence Act. Reference may be had to Illias v. Collector of Customs AIR 1970 SC 1065 contrasted with Ramesh Chandra Mehta v. State of WB AIR 1970 SC 940. After recording statement, the person making the statement cannot be implicated as it is contrary to the Constitutional guarantee in article 20(3) without the possibility being made known him. Reference may be had to applicability of Cr.PC in the absence of procedure on conducting trial in Adani Enterprises Ltd. & Ors. v. UoI & Ors. 2019-TIOL-2408-HC-MUM-CUS.Comparative review
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