An administrative order which is based on reasons of fact which do not exist must be  held to be infected with an abuse of power.”. Currently showing page 1 of 5. Amreli) Tel.No. 44. The production of a person accused should not be accepted by the Magistrate without being convinced that the arrest is on lawful grounds and on prima-facie materials indicating the complicity of the accused in the alleged offence. It appears that the office premises of the writ applicant situated at Ahmedabad and Baroda were raided by the respondent-Authorities, in exercise of their powers, under Section 67 of the CGST Act, 2017. In any event, attachment under this provision should not be equated with attachment in the course of recovery proceedings. Before being codified in the Code, the specific requirement to draft an arrest memo at the time of arrest was first laid down as a guideline by the Supreme Court in D.K. The legislature no doubt has used the expression “circumstances suggesting”. What is important to note are the observations made by the Supreme Court in para-92 which reads thus: “92. The Gujarat High Court has held that the Commissioner ought not to have delegated his powers of provisional attachments under Section 83 of the CGST Act to the Assistant Commissioner. 1,60,00,000/( Rupees One Crore Sixty Lakh only), and in such circumstances, thought fit to provisionally attach the goods worth only Rs.1,60,00,000/from the total goods worth Rs.2,48,59,485/( Rupees Two Crore Forty Eight Lakh Fifty Nine Thousand Four Hundred Eighty Five only). Copy To: 1. It was submitted that apart from the attachment of the bank accounts, the respondents have also provisionally attached the office premises of the petitioner being B-705, Mondeal Heights. 2.4. (7) The Assessing Officer shall. His Constitutional right cannot be abridged except in the manner permitted by law, though in the very nature of things there would be qualitative difference in the methods of interrogation of such a person as compared to an ordinary criminal. COMMISSIONER OF INCOME TAX RAJKOT 2 RAJKOT. He cannot, however, be tortured or subjected to third degree methods or eliminated with a view to elicit information, extract confession or drive knowledge about his accomplices, weapons etc. (vi) The above are merely the incidents of personal liberty guaranteed under the Constitution of India. 2 lacs to the widow of the deceased by was of the relevant provisions of law to protect the interest of arrested persons in such cases too is a genuine need. 32. The first and the foremost thing which needs to be noted is that even for the purpose of Section 67, the satisfaction has to be of the proper officer not below the rank of the Joint Commissioner. in paragraph no. It is further required to be noted that the said Directors have till date not cooperated with the respondent authorities and are not traceable. It is, therefore, inconceivable that the order which is required to be served by the appropriate authority under Ss. Rajula, Dist. 17. The concerned officer Mr. S.H. The format must contain all the mandatory requirements and necessary additions. This is provided for in Section 50 of the CrPC. assistant commissioner : div-ii & iv 0261-2478742 (13) shri n.l. (11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.”. Held: Assessee-company was registered under the provisions of the Gujarat Goods and Services Tax Act, 2017. necessary” employed in Section 3 (1) of the Prevention of Corruption Act, 1988 which conferred the discretion upon the State Government to appoint as many Special Judges as may be necessary for such area or areas or for such case or group of cases to try the offences punishable under the Act, observed : “The legislature had to leave it to the discretion of the Government as it would be in a better position to know the requirement. 02717-238221: cgdrdiv-cgstamdnorth@gov.in: P.N. All Rights Reserved. The writ applicant is a company, incorporated under the provisions of the Companies Act, 1956. at Surendranagar and is serving in the said Department since the year of 2016. Later, an order of provisional attachment of the immovable property came to be passed by the Assistant Commissioner of State Tax in exercise of powers, under Section 83. In the case on hand, Section 83 makes it abundantly clear that it is the Commissioner’s opinion which is relevant. Nirma Chemical In other words, Om Prakash (supra) deals with the question, “whether the offences under the Customs Act, 1962, and the Central Excise Act, 1944, are bailable or not?” However, provisions of the subsections (2) and (3) of Section 69 of the CGST Act, provides inbuilt mechanism and procedure in case of arrest for non-bailable offences and bailable offences. An officer whether of the Central Excise department or another agency like the DGCEI, authorised to exercise powers under the Central Excise Act and/or the FA will have to be conscious of the constitutional limitations on the exercise of such power. We may quote the relevant observations, made in the judgment referred to above as under: “15. 22. (i) the order has been passed by the Assistant Commissioner, and (ii) the order has been passed without any credible materials, available for the purpose of passing such order of provisional attachment. 9. 82. Press Note of Arrest under GST Law by CGST,Ahmedabad South Commissionerate Please click here| Press Note of Priventive Please click here| GST FAQ Chp 1 to 24 (GUJARATI) Please click here| GSTNFAQ (GUJARATI) Please click here| Suo moto disclosures i.r.o Ahmedabad-I under Section 4(1)(b) of the RTI Act, 2005 (as on November 2016) - Click here for … The influence of extraneous matters will be undoubtedly there where the authority making the order has admitted their influence. 6. 27 Section 2(25) of the CGST Act defines “Commissioner in the Board” as under: “2(25) “Commissioner in the Board” means the Commissioner referred to in section 168;”. Although the Crown’s lawyers have argued in numerous cases that unrestricted permissive language confers unfettered discretion, the truth is that, in a system based on the rule of law, unfettered governmental discretion is a contradiction in terms. At this stage, we may refer to a very recent pronouncement of the Supreme Court in the case of Union of India v. Ashok Kumar Sharma & Ors. The ruling was made by a division bench comprising of members Justice J.B.Pardiwala and Justice Bhargav D. Karia in the case of Enprocon Enterprise Ltd. At the most, the same could have been ordered to be provisionally attached, but how could the same have been blocked. Application of the assessee pending before Assistant Commissioner for release of assets attached must be disposed of the earliest for the ends of justice. : (079)-26576702 Fax : (079)-26582056 salestax-ahd@gujarat.gov.in The object of S. 237 is to safeguard the interests of those dealing with a company by providing for an investigation where the management is so conducted as to jeopardize those interests or where a company is floated for a fraudulent or an unlawful object. 35. 0260-2460459 Fax No. Power under this provision is to be exercised only if there is sufficient material on record to justify satisfaction that assessee is about to dispose of whole or any part of his property with a view to thwarting ultimate collection of demand and in order to achieve said objective attachment should be of properties and to extent it is required to achieve this object. Your email address will not be published. Still further, can the Inspector under the Act, arrest a person in connection with an offence under Chapter IV of the Act.”. However, a person arrested by an authorised Officer because he is found to be evading tax or availing input tax credit as specified in the clauses (a) to (d) of the sub-section (1) of the section 132 of the CGST Act is not, when called upon by the authorised Officer to make a statement or to produce a document or thing, accused of an offence within the meaning of Article 20(3) of the Constitution of India. One copy of this judgment shall also be forwarded to the Commissioner of State Tax, State of Gujarat. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.”. Currently showing page 1 of 5. It also appears that the proceedings under Section 73 of the GGST Act, 2017, have been initiated against the writ applicant. At this stage, we may state the guidelines issued by the Supreme Court in D.K. This Court, however, is quite conscious of the fact that pronouncement of Supreme Court in case of Poolpandi(supra) as also in another case, pointing out that the right of investigating authority should not be interfered with, as given to them under the provisions of the Act, does not give them an uncharted liberty to proceed in whatsoever manner they like in the matter of such inquiry or to extract statements from the person concerned by perpetuating torture or by applying third degree methods. 29/GST/ITC/Kalyan/2018-19 on 12-09-2018 on the ground that the appellant carried out business activity from an undeclared place of business and issued improper tax invoices showing undeclared address Pandor, Assistant Commissioner of State Tax (1) (Enforcement), Division-1, Ahmedabad shall be joined as respondent No. “Commissioner in the Board” means the Commissioner referred to in section 168 of the Central Goods and Services Tax Act;”. Foreign Exchange Regulation Act etc. Extend period stipulated in order. We now propose to examine the matter from a different angle. 3. Join 5 Days Certification Course on TDS and TCS Provisions under Income Tax Act 1961, GSTR-9/GSTR-9C Optional Reporting requirement FY 2019-20, TDS to be deducted on year end provisions for expenses, Not ordinarily resident Employee, ESOPS of Indian Co. In the aforesaid premises, issue rule, returnable on 10.10.2019. However, the intention may be negatived by any contrary indications in the language, scope or object of the statute. (6) The proper officer, on receipt of such information, shall not serve any notice under sub-section (1), in respect of the tax so paid or any penalty payable under the provisions of this Act or the rules made there under. … Delegation is not the complete handing over or transference of a power from one person or body of persons to another. Gujarat Ahmedabad Ahmedabad South Vatva - I Range III The jurisdiction of this range extends upto plot nos. The right of preventive detention of individuals in the interest of security of the State in various situations prescribed under different statures has been upheld by the Courts. At the same time we have to bear in mind that it is not any and every material, howsoever vague and indefinite or distant, remote and farfetched, which would warrant the formation of the belief relating to escapement of the income of the assessee from assessment. In such circumstances, the order is not tenable in law and deserves to be quashed and set aside. The "Vadodara Mahanagar Seva Sadan" or Vadodara Municipal Corporation or VMC, established in July 1950 under the Bombay Provincial Corporation Act, 1949, is responsible for the civic infrastructure and administration of the city of Vadodara.. Whichever is later. CPIO/ Assistant Commissioner (CCC)) Central GST & Central Excise Vadodara . R/SPECIAL CIVIL APPLICATION NO. (i) The Commissioner is required to record reasons of belief to arrest a person as per sub-section (1) of Section Tushar Makwana, for providing false bills.”. 41. In order to submit a comment to this post, please write this code along with your comment: 1ab862e5615a91581ccbac7d2039deff. (1) The Board may, if it considers it necessary or expedient so to do for the purpose of uniformity in the implementation of this Act, issue such orders, instructions or directions to the central tax officers as it may deem fit, and thereupon all such officers and all other persons employed in the implementation of this Act shall observe and follow such orders, instructions or directions. at the police station, the authorized officer under the GST can only lodge a complaint in writing before the Court concerned. When the search of the industrial premises of the writ applicant was undertaken, the further inquiry in that regard revealed that there were no goods involved, but there were only billing transactions. Answer : The product ‘Fried Fryums’ manufactured and supplied by applicant is classifiable under Tariff Item 2106 90 99 of the First Schedule to the Customs Tariff Act, … Such a direction may perhaps be issued in case of an accused because of his right under Article 22 of the Constitution of India but the same cannot be made applicable to a person who is interrogated under section 70 of the GST Act or section 108 of the Customs Act where no right under Article 22 of the Constitution is affected as held by the Supreme Court in case of Poolpandi(supra). The word “necessary” means indispensable, requisite; indispensably requisite, useful, incidental or conducive; essential; unavoidable; impossible to be otherwise; not to be avoided; inevitable. We are afraid we are not in a position to accept this argument. 5. This Account belongs to Admistrator of Studycafe. Since this  provision provides for attachment of property of assessee only and, therefore. It shall also be countersigned by the arrestee and shall contain the time and date of arrest. The expression “is of opinion”, that substantial modifications in the draft development plan and regulations, “are necessary”, in our considered opinion, does not confer any unlimited discretion on the Government. Therefore, invoking this provision and issuing notice under the provision of the Income Tax Act, 1961 dealing with assessment in case of search or requisition on same day would not effect validity of order passed under this provision. (2)The proper officer shall issue the notice under subsection (1) at least  six months prior to the time limit specified in subsection (10) for issuance of order. A Police Officer, when he arrests a person without warrant and he is not accused of committing a non-bailable offence, is duty-bound to inform him of his entitlement to be released on Bail. 182D of Schedule-I of Notification No.1/2017-Central Tax (Rate) dated 28.06.2017, as amended, and corresponding Notification issued under the Gujarat GST Act, 2017. Office of the Commissioner, Central GST, 2ND Floor, Hani’s Landmark, Above HDFC Bank, Vapi–Daman Road, Vapi (Gujarat) Phone No. Basu’s case [1997 (1) SCC 416] in the context of the powers of the police officers under the Code of Criminal Procedure, 1973 and of officers of the Central Excise, Customs and Enforcement Directorate are applicable to the exercise of powers under the provisions of section 69 of the GST Act in equal measure? In the case at hand, Ms. Mehta, the learned A.G.P. Further, provisional attachment can be levied even in cases where proceedings under provisions of the Income Tax Act, 1961 dealing with search and Seizure are yet to be initiated. The arrest and detention are only for the purpose of holding effective inquiry under the provisions of the CGST Act with a view to adjudging the evasion of GST and availing illegal input tax credit and imposing penalty. Though, such apprehension is not substantiated by any credible material on record, the same would be taken care of by the above observations made in answer to the question no.4. It observed that attachment of bank accounts and trading assets should be the last resort and that blockage of the input tax credit by way of computer entry was illegal. The High Court of Madras held that the Assessing Officer cannot pass the best judgment assessment on the ground of best judgment assessment and the penalty under Section 12(3) of the Tamil Nadu General Sales Tax (TNGST) Act, 1959.. All Rights Reserved. A. Since a decision of the court is considered the final word on the matter, settling a dispute between the parties, what goes into that decision is therefore of utmost importance. In the result, this Writ Application succeeds and is hereby allowed. It is significant to note that in D.K. 24. The Assistant Commissioner rejected the refund claim vide OIO No. It should therefore be exercised with extreme care and caution. The maxim does not embody a rule of law. assistant commissioner of commercial tax, unit- 25, kalol above ankur hospital, near nagarpalika gardan gandhinagar 382721 5 assistant commissioner of commercial tax, unit- 26 himmatnagar assistant comissioner's office, under motipura bridge, near bus stand sabarkantha 383001 6 assistant commissioner of commercial tax, unit- 27 modasa 48. [AIR 1999 SC 1912], the Supreme Court while construing the expression “as may be 0260-2460484 : Office of the Commissioner, Central GST, Daman Commissionerate. It is the requirement which would necessitate exercise of power by the Government. Miscellaneous. (i) Whether the provisions of sections 154, 155(1), 155(2), 155(3), 157, 172 of the Code of Criminal Procedure, 1973 are applicable or should be made applicable for the purpose of invoking the power to arrest under section 69 of the CGST Act? Sd/- The Commissioner may, by notification,direct that subject to such conditions, if any, as may be specified in the notification, any power exercisable by any authority or officer under this Act may be exercisable also by another authority or officer as may be specified in such notification.”. The Registry is directed to circulate this judgment in all the sub-ordinate Courts across the State of Gujarat. Central Excise, Customs & Service Tax Commissionerate, Surat-II, Surat, India. An 7. 25. Therefore, the orders of provisional attachment as well as the order of prohibition were not sustainable on two counts, i.e. A. There can also be no doubt that since the legislature has provided for the opinion of the government and not of the court such an opinion is not subject to a challenge on the ground of propriety, reasonableness or sufficiency. Patran Steel Rolling Mill vs. Assistant Commissioner of State Tax, Unit 2 – [2019] 101 taxmann.com 80 (Gujarat) The petitioner was engaged in the manufacturing and supplying of various iron and steel products. (6) Where a notice of demand specifying a sum payable is served upon the assessee and the assessee fails to pay that sum within the time specified In the notice of demand, the Assessing Officer may invoke the guarantee furnished under head (3) wholly or in part, to recover the amount. 38. Such power should be used sparingly and only on substantive weighty grounds and reasons. This also included officers exercising powers under the Customs Act, 1962 the Central Excise Act, 1944 and the Foreign Exchange Regulation Act, 1973 (FERA’) now replaced by the Foreign Exchange Management Act, 1999 (‘FEMA’) as well. In view of the foregoing reasons, observations and directions, the petitions are accordingly ordered to be rejected. Malice in its legal sense means such malice as may be assumed from the doing of a wrongful act intentionally but also without just cause or excuse or for want of reasonable or probably cause. If it is shown that the circumstances do not exist or that they are such that it is impossible for any one to form an opinion therefrom suggestive of the aforesaid things, the opinion is challengeable on the ground of non application of mind or perversity or on the ground that it was formed on collateral grounds and was beyond the scope of the statute. The Union of India/Directorate of Enforcement was also directed to pay sum of Rs. The Gujarat High Court held that the power under Section 83 of the Central GST Act, 2017 is a drastic power that should be used sparingly and only on substantive weighty grounds. 26. Gujarat Goods and Services TAX Bill 2017 (Gujarati) GST Rules THE GUJARAT GOODS AND SERVICES TAX RULES,2017(Amended up to 25-4-2018) FAQ on GST FAQ on Model GST Law; FAQ on GSTIN Migration; GST Proper Officer List. It is hard to contemplate that the legislature could have left to the subjective process both the formation of opinion and also the existence of circumstances on which it is to be founded. Form MOV-11 Special Wire Products Pvt Ltd Vs Deputy/ Assistant Commissioner GST and Central Excise -22-07-2020. (9) Where the Assessing Officer is satisfied that the guarantee referred to in head (3) is not required anymore to protect the  interests of the revenue, he shall release that guarantee forthwith. Upon the expiry of the period stipulated in the order demanding provisional attachment, assessee is entitled to encash his money minus any tax due. 1. The applicant, Gaurav Kumar Sudhashankarnkumar Arora is appointed as the Inspector in the office of the Central G.S.T. Therefore, it is not necessary for the Commissioner to provide a copy of the reasons recorded by him for his belief if he has reason to believe that any person has committed offences which are cognizable and non bailable. What has been observed and discussed by us are general propositions of law keeping in mind the subject matter. Conclusion: Commissioner ought not to have delegated his powers of provisional attachment of the immovable property under Section 83 to the Assistant Commissioner, therefore, the order of provisional attachment passed by the Assistant Commissioner was hereby quashed and set aside. It was submitted that therefore, there is no justification for attaching the bank accounts over and above the attachment of the office premises when the liability that may arise is already protected by the attachment over the office premises. The statement of Sanket Shah, the head cashier of the Central Bank of India on several occasion he was given Rs.8,000/- to the proprietor of Shivay Enterprise viz. By its language, the sub-section (3) does not equate the officers of the GST with an officer in charge of a police station, nor does it make him one by implication. 20. Any use of discretionary power exercised for an unauthorized purpose amounts to malice in law. (6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is. Sd/- The expression “scheduled bank” shall mean a bank included in the Second Schedule to the Reserve Bank of India Act, 1934.”. MAHAVIR ENTERPRISE vs. ASSISTANT COMMISSIONER OF STATE TAX (Gujarat High Court) ... Respondent: ASSISTANT COMMISSIONER OF STATE TAX Court: Gujarat High Court State: Gujrat Date: Jun 22, 2020: Order No. 14129 of 2019, Taxguru Consultancy & Online Publication LLP, 509, Swapna Siddhi, Akurli Road, Near Railway Station, Kandivali (East), Power to Pass Provisional Attachments Order under GST can’t be delegated to Assistant Commissioner, Section 37 General Deductions allowed for Business & Profession, New Process to Submit Response for Income Tax Refund, Section 35AD Deduction towards expenditure on specified business, Section 35ABB – Deduction towards expenditure incurred for obtaining a licence for operating telecommunication services, ‘Address of delivery’ & ‘Address on record’ under GST, Bombay HC stayed provisional attachment of bank accounts noting assessee’s cooperation, Gujarat HC grants regular bail to assessee arrested for offences punishable under Section 132(1)(a) of CGST Act, Join Detailed Online Certification Courses on GST. The two definitions read as under: “2(24). Administrator of Special Economic Zones and the 100% EOUs in Gujarat Trustee Kandla Port Trust ... Assistant Commissioner GST at Goverment of India Chennai. GST Act / Rules (Amendments) GST Rates Classification (Chapter Wise) ... M/S. It is not any and every material, howsoever vague and indefinite or distant remote or far-fetching, which would warrant the formation of the belief. And the formation of his belief that there has been escapement of the income of the assessee from assessment in the particular year because of his failure to disclose fully and truly all material facts. 1 coram: honourable mr.justice j.b.pardiwala and … Maintained by V2Technosys.com, Appeal Number : Special Civil Application No. Halsbury’s Laws of India (Direct Tax II, Vol 32) 2nd edn. The provisions of Section 281B of the Act, 1961 is extracted below for the sake of completion and to demonstrate that the provisions of Section 83 have been framed along identical lines as Section 281B: “1) Where during the pendency of any proceeding (or the assessment of any income or for the assessment or reassessment of any income which has escaped assessment, the Assessing Officer is of the opinion that for the purpose of protecting the interests of the revenue it is necessary so to do, he may, with the previous approval of the Principal Chief Commissioner or Chief Commissioner, Principal Commissioner or Commissioner, Principal Director General or Director General or Principal Director or Director, by order in writing, attach provisionally any property belonging to the essessee in the manner provided in the Income Tax Act, 1961. In the aforesaid context, we may quote: “Halbury’s Laws of India (Direct Tax II, Vol 32), 2nd Edn. Sd/- Ms. Mehta, thereafter, invited the attention of this Court to Section 167 of the Gujarat Goods and Services Tax Act, 2017 (fort short, ‘the GGST Act, 2017), which is with regard to the delegation of powers. We are of the view that the construction placed on the expression “reason to believe” will equally be applicable to the expression “is of opinion” employed in the proviso to Section 17 (1) (a) (ii) of the Act. GST officers can arrest evaders without completion of assessment: HC. It is high time that the GST department prescribes a standardized format for the arrest memo. The said stock of goods has been provisionally attached. The facts, giving rise to this Writ Application, may be summarized as under: 2.1. As one of these guidelines, the requirement to draw up an arrest memo was first articulated as: An order for provisional attachment passed under this provision is valid only for a period of six months and ceases to have effect after the expiry of six months from the date of the order. 18. GST Case Laws / Advance Rulings GST Notifications / Circulars GST Act / Rules GST Act / Rules (Amendments) ... ASSISTANT COMMISSIONER Court: Gujarat High Court State: Gujrat Date: Dec 21, 2020: Order No. State Tax Officer 1, We also clarify that in none of the petitions, any case is made out for grant of any relief having regard to the facts narrated by the petitioners in their respective petitions. In the aforesaid context, we may refer to and rely upon a decision of the Supreme Court in the case of Smt. “Belief” is a mental operation of accepting a fact as true, so, without any fact, no belief can be formed. “37. Such power should be used sparingly and only on substantive weighty grounds and reasons. div-vi(tapi) - (14) shri pankaj jha : assistant commissioner : div-vii(navsari) 02637-281067 (15) shri munim singh : assistant commissioner : div-viii(valsad) 02632-226193 (16) shri jagdish kumar Proceedings have been launched against the aforesaid taxable person under section 67 of the said Act to determine the tax or any other amount due from the said person. Basu (supra). 42. Delegation generally means parting of powers by the person who grants the delegation, but it also means conferring of an authority to do things which otherwise that person would have to do himself”. Gujarat Filing is online service platform of Professional service. In D.K. (4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or and through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

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