What to be do when issue of summons to a person under GST

Power to summon persons to give evidence and produce documents in GST

Provision of the CGST Act, 2017 under Section 70 mentioned hereunder: Power to summon persons to give evidence and produce documents.

1. The proper officer under this Act shall have the 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 proceedings” within the meaning of section 193 and section 228 of the Indian Penal Code.

What to be do when issue of summons to a person under GST

• A summons is an act of forcing someone to be present in front of authority. The GST officers responsible can, as the case may be, summon any registered person to present with some evidence or records. The aim of this article is to provide some advice and precautions on the topic of GST summonses.
• Almost all persons to whom a summons is rendered shall be obliged to attend, whether in person or by an appointed agent, in the event that the taxpayer is not a natural person. The person summoned could only request postponement of the summons on the grounds of legitimate reasons/pre-defined official meetings, inevitable causes such as sickness, being out of the country or personal issues such as the death of a close relative.
• If a person has been unable to attend on a set date and time, he or she must intimate the reason why he or she is unable to attend and request that a fresh date be fixed with a prior intimation. The details available can also be sent to show what is being sent in the same document of extension.
• The person representing the summons must state the truth on any question posed. If the requested information is not known to the summoned person, it should be explicitly mentioned that the information is not known. Alternatively, if you need time to get the details you are searching for, then ask for time. This will suggest that no false claims are made which will be used against the assessee if Show Cause Notices (SCN) is subsequently released.

GUIDELINES ON ISSUE OF SUMMONS UNDER GST

• The officer shall issue the summons only as a tool of last recourse, in the case of an assessor who does not cooperate.
• The sound of the summons' language must not be harsh and lawful, which can contribute to excessive mental stress on the recipient.
• If the Superintendent wishes to issue a warrant, he must receive prior written authorization from an investigator whose rank is equal or greater than that of the Assistant Commissioner.
• Where, for operational purposes, such prior written permission can not be obtained, oral / telephone conversations permission is required from such an officer, and the same can be reduced to writing and reported to the officer as quickly as possible pursuant to such consent.
• The summoning officer must therefore submit the summons or document a summary of the procedures for presentation to the officer who had been allowed to issue the summons.
• No summons shall be given abruptly to senior management officials such as the CEO, the CFO or the General Manager. The agency can issue a summons only on the basis of proof of its participation in the decision-making process leading to a loss of revenue.

Precautions

• There has to be a proper reason for the summons to be issued. The authority of summons should be exercised only if there is a need for the presence of the assessee.
• The individual shall stop repeated summonses. The transcripts of the statements made by the accused shall represent the minimum number of appearances practicable.
• The importance of time and commitment of the candidate must be respected and the summons made on time, except in situations where it is a matter of policy.
• The authority shall, however, assess the claims of the assessee just during the business hours, subject to the few exemptions.

Silent feature of Summons provisions

• The summons is a legal proceeding that can not be ignored.
• Officers of the rank of Superintendent and above shall be allowed to enforce summonses.
• The summons should specify the purpose of the investigation. It's not meant to be ambiguous.
• The person summoned must attend and state the truth of the matter under consideration.
• The assessee/individual is bound to submit all the documents requested. State the appropriate time needed to provide the same if it is not available.
• The party summoned shall appear and the designated delegate shall not be able to appear on his behalf.
• The assertion should be reported during the request made during the summons.
• The statement is admissible as evidence and can be used in legal proceedings against an individual.
• The declaration should be made on a voluntary basis and not under the pressure of intimidation or even worse dictation.
• The assessee should be summoned and put out a statement throughout work time. As per Circular No. 65/88 of the Board of Directors, dated 6-9-1988, issued by CBEC pursuant to CE, the summoned persons should not be questioned at odd hours. The Board vacuums the Circular in F. 208/122/89-CX. 6, 13-10-1989 requested the officers to show caution when selecting the senior management members of the company. The summons to managing directors, directors, and senior officers must be rendered only if the assesses do not comply and this service should not be used to pressure management.

Note: In the light of the fact that GST promotes 'Ease of Doing business,' the guideline referred to above should apply equally to GST and to employees who do not wish to obey them, who may have complained against it.

Few more important point to take into consideration while dealing with the GST Summons Provisions

• If the Assessee is not comfortable with the English language, he or she can ask to be reported in the native language.
• If you want a cross-examination about any other person, you should ask the officer to summon and cross-examine some other person.
• Do not make any tax payment/confessions/concessions in the summons that are also contrary to the procedure adopted by due process of the law by the agency.
• The assessee should ensure that the positive details leading to concessions/immunity/exemptions are reported in a copy of the declaration.
• If the officer concerned is not aware of the facts, he should recommend that the employee who is acquainted with the truths and the summons shall be provided appropriately.
• Summons can be given to a specific person, even in the course of the investigation initiated against another person;
• In the context of the summons, the attorney of the taxpayer will be allowed to be present within a visible distance, but outside of the normal ranges.
• Courts generally do not participate at the summons level of the investigations except in rare circumstances such as intent, intimidation, duress, or unreasonable pressure.
• Although the Assessee submits all the documentation to the officer, as stated in the summons document, the tax payer must attend the summons.

SC allowed service of notices/summons/ document via WhatsApp, Telegram in addition to e-mail.

• The Hon’ble Supreme Court in Re: Cognizance for Extension of Limitation [Suo Moto W.P. (C) No. 3/2020 dated on July 10, 2020] w.r.t. I.A. No. 48461/2020 observed that service of notices, summons and exchange of pleadings/documents, is a requirement of virtually every legal proceeding and that the service of notices, summons and pleadings etc. have not been possible during the period of lockdown because this involves visits to post offices, courier companies or physical delivery of notices, summons and pleadings.
• The Court therefore, considered it appropriate to direct that such services may be effected by e-mail, FAX, commonly used instant messaging services, such as WhatsApp, Telegram, and Signal etc. However, if such services are made by means of said instant messaging services, then in addition thereto, the service of the same document/documents must be made via e-mail on the same date.

Concluding

• We live in a democracy and high pressure, dictated statements reported under stress/threat of abuses of human rights. In this article, the paper writers tried to explain the issue of allowing tax compliant persons to face summonses.
• This is to arm the trustworthy assessee and his advisers to face the departmental representatives confidently and courageously. In the age of India's supremacy in world trade, corruption reduction, transparency, and high ethical standards will also play a crucial role in the emergence of a super-power.

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