Inspection, Search and seizure under GST

Inspection, Search and seizure under GST

BRIEF INTRODUCTION

The Goods and Services Tax Act was passed in the year 2017, with the aim to subsume, almost all the indirect taxes, into a single tax. Thus, a uniform tax rate be applicable on all goods and services. Every person, registered under GST and supplying goods or services, is required to comply with the rules and regulations specified in the GST Act. Where, any non-compliance is witnessed, the same be held as the breach of law, and shall be liable to penalties. The GST Council expects to have more than 1 crore GST registration since there will be smoothen structure for registration, filing and conducting the business.

Offences under GST

GST provides a list of certain activities that are termed as an offence. Since the primary aim of GST is to eliminate Tax Evasion, strict penalties were fixed for the offences listed in the GST.

Under Sec 122(1), the following 21 defaults have been specified, involving a penalty of Rs 10,000 or the amount of tax involved, whichever is higher.

1. Supply of goods/services without issuing an invoice or issuing an incorrect or false invoice.
2. Issuance of invoice without supplying goods and/or services.
3. TDS deducted but not deposited with government.
4. TCS collected but not deposited with the government.
5. TDS deducted in contravention with the provisions.
6. TCS collected in contravention with the provisions.
7. Claiming of full or partial input tax credit without receiving the goods and/or services.
8. Refund of tax obtained by fraud.
9. Distributing the input tax credit in a manner against the prescribed standards.
10. Submitting fake financial records, or producing fake accounts, documents ad returns.
11. Liable to take registration, but fails to take one.
12. False information furnished in the registration application.
13. Not allowing an officer from performing their duties.
14. Transfer of taxable goods through conveyance, without proper documents
15. Suppressing the turnover, with the intention to evade tax
16. Failure in maintaining proper books of accounts and documents
17. Failure to furnish information as required by the CGST/SGST officers.
18. Supplying of goods where the goods are liable for confiscation
19. Issuance of invoice or document using GSTIN of another person.
20. Tampering with material evidence crucial for proceeding.
21. Tampering with any goods, detained, seized, or attached, as an evidence in a proceeding.

Provisions of Arrest, Inspection and Seizure under GST

It is believed that for proper regulation and monitoring of any law, there is a requirement to have provisions relates to inspection, search, seizure and arrests to protect the interest of genuine taxpayers. These provisions will thereby help the Officers to undertake requisite actions and hence protect the Government Revenue.

 

Inspection under GST

Under the GST Act, the inspection can be initiated where, the Joint Commissioner of SGST/CGST, have the reasons to believe that to evade tax, a person has suppressed any transaction or claimed excess input tax credit. In such a case, the Joint Commissioner can authorize any other officer, to inspect places of business of the suspected evader. The reason to believe shall relate to –

1. Suppressing of transactions relating to supply of goods or services.
2. Claiming of excess of ITC, or lowering the GST liability excessively.
3. Undertaken any transaction, that is in contravention of any provisions of the Act, to evade tax
4. Transporting the goods without having proper documents.
5. Manipulation of accounts and documents, leading to tax evasion.

 

Inspection during transit under GST

Under this, the person carrying the goods of value exceeding Rs. 50,000 is required to carry the following documents:

• The invoice or bill of supply of the goods/service along with the delivery challan.
• Copy of e-way bill, properly filed by the supplier and the transporter.

The proper officer can intercept goods in transit and have an inspection of the goods and the documents. Where the goods are found to be in contravention of the GST Act, such goods, related documents, and the vehicle will be seized. And the goods be released only on payment of tax and penalty.

Search and Seizure under GST

It can be seen that more strict procedure of Search and Seizure has been prescribed as compared to inspection, and as a result, the Joint Commissioner or any officer with similar rank is authorized to order for search. Also, the officer shall order for search and seizure only after having valid information and reason to believe that the taxpayer is in receipt of goods liable to confiscation or any documents, books, record or things relevant to any proceedings.

All these search and seizure be carried out in accordance with the provisions of Criminal Procedure Code, 1973 which requires the presence of at least two independent witnesses and a record of entire proceedings. During the time of search and seizure, any goods, documents, books, records or other things which is related to the proceeding shall be searched or seized. Where the seize of a goods or object is practically not possible, such goods or object can be detained. Also, an inventory of the seized goods and documents must be prepared by the Officer and the same be provided to the person from whom the goods or documents were seized.

All documents or objects detained must be returned, provided the same is required for examination / enquiry / proceedings.  Where an exporter claims higher duty drawback during the transitional period, the said individual shall attach the declaration from the exporter and certificate from jurisdictional GST officer, so that the double availing of input taxes can be eliminated. However, in case the notice is not issued within a period of six months, then such goods need to be returned to the owner of the goods or documents.

GST: Unauthorized search and seizure by BIEO, HC grants interim relief. Case M/s. Kumar Traders And Company & Anr. Vs. The State of Assam (Guwahati High Court)

ARRESTS UNDER GST

GST rules and regulations also provides for the harshest of the punishment involving imprisonment. Imprisonment is ordered under GST if a person commits the prescribed offences and the tax amount is exceeding Rs.100 lakhs. The following term of imprisonment has been provided –

DEFAULT OF TAX	IMPRISONMENT
RS 100 – 200 LAKHS	UPTO 1 YEAR
RS 200 – 500 LAKHS	UPTO 3 YEARS
ABOVE RS 500 LAKHS	UPTO 5 YEAR
AIDS IN COMMITMENT OF AN OFFENCE	UP TO 6 MONTHS

SUMMON UNDER GST

Where any summon has been issued by the proper officer, the person to whom such summon is issued is required to present himself before the officer, providing the required evidence or to produce a document as and when required.

INSPECTION TO BUSINESS PREMISE UNDER GST

The proper officer shall appoint an officer for conducting a search in the business premises of the registered taxable person for inspection of the book of accounts, documents and other related papers. However, the search should be made only in respect of audit or verification of accounts of a registered person.

The person shall be asked to provide the following documents to the officer –

1. The books of accounts and records are required to be maintained with the person.
2. Statement of trial balance or any other statement evidencing the balances from different ledgers.
3. Statements of annual financial accounts, duly audited by a CA.
4. Cost audit report as required under the Companies Act.
5. Income tax audit report, as required under the Income Tax Act.
6. Any other record, as the officer may require for inspection.

PRECAUTIONS DURING INSPECTION AND SEARCH UNDER GST

• The person shall be obedient and do not try to show any smartness in front of the officer.
• The person should be clear and provide correct information, as any sough of dubious behaviour or wrong statement could prove the person wrong.
• Person shall not hide any document or record and to be present before authorities clean handed.
• All the statements under the proceeding be provided by the person named as the Authorised Person in the registration document. However, the proper officer has the full authority to summon and question any other person, as he may deem fit.
• The person shall not interfere or stop any officer conducting an investigation, under section 71(1), of the place of business, records, property, computer etc.
• Where the authorized or any other person, giving a statement to the officer, is not having complete knowledge of the matter, such persons shall not give any statement by guesswork, and shall rather be straightforward and clarify that are having no knowledge of the same. They can also provide a name of a person who they believe to have the information related to the whole transaction.
• The person shall disclose information related to registration of all their place of business as additional place of business, where such places are identified during search, the same be treated as “Un-Authorised Business Premises”

Income tax dept searches in Hyderabad resulted in the recovery of approximately Rs. 142 cr. in cash.

• On October 6, 2021, the Income Tax Dept. conducted a search and seizure operation on a big pharmaceutical business situated in Hyderabad.
• This pharmaceutical company specialises in the production of intermediates. The search was conducted in approximately 50 locations across 6 states.
• During the searches, Hideouts were discovered where a second set of books of accounts and cash were discovered. Digital media, pen drives, documents, and other items have been discovered and confiscated.
• Various other legal issues were also identified such as personal expenses being recorded in the company’s books and associated parties purchasing land for less than the government’s registration value.
• Several bank lockers have been found throughout the investigation, with 16 of them being used.
• The searches have resulted in the seizure of unexplained cash amounting To Rs 142.87 crore.
• The amount of unaccounted income discovered so far is expected to be around Rs 550 crore.
• Further examinations and quantification of the undeclared revenue discovered are still underway.

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