Gujarat High Court has passed strictures against the CGST authority for gross abuse of power
Prakashsinh Hathisinh Udavat Vs State of Gujarat (Gujarat High Court)
[Special Civil Application No. 15365 of 2019]
Powers to attach the property to protect the interest of the revenue are conferred by section 83 of the GGST Act. However, a condition precedent for exercise of powers under section 83 of the GGST Act is that any proceeding should be pending under section 62 or section 63 or section 64 or section 67 or section 73 or section 74 thereof. In the present case, no proceeding under any of the above sections is stated to have been pending against the petitioner at the time when the order of seizure came to be made. The only proceeding which finds reference in the affidavit-in-reply is under section 71 of the GGST Act which relates to access to business premises. As is apparent of a plain reading of section 83 of the GGST Act, the same does not empower the Commissioner to take action thereunder during the pendency of proceedings under section 71 of the GGST Act. Therefore, the impugned order of seizure made by the respondent No.4 is not relatable to any provision of the GGST Act. Therefore, it is not even possible to say that the provision referred to in the impugned order is incorrect but that the respondent No.4 was otherwise vested with such powers. Under the circumstances, the inescapable conclusion is that the respondent No.4 has acted without any authority of law and in gross abuse of powers, which renders the impugned order of seizure, unsustainable.
FULL ORDER:
1. Rule. Ms. Maithili Mehta, learned Assistant Government Pleader, waives service of notice of rule on behalf of the respondents.
2. Having regard to the controversy involved in the present case and the fact that the learned advocates for the respective parties were given to understand that the matter is to be finally heard, the matter was taken up for final hearing today.
3. By this petition under article 226 of the Constitution of India, the petitioner challenges the action of the respondents of seizing the petitioner’s car bearing number GJ-01-RX-0477 as well as his two mobile phones vide order of seizure dated 25.10.2018 made in exercise of powers under sub-section (2) of section 67 of the Gujarat Goods and Service Tax Act, 2017 (hereinafter referred to as the ‘GGST Act’) (Annexure-A to the petition) and seeks release of the above vehicle and the mobile phones so seized.
4. The facts as averred in the petition are that according to the respondents the petitioner had committed an offence punishable under sections 132(1) (b) and 132(1) (c) of the GGST Act on the allegation that the petitioner is the proprietor of M/s. Om Enterprise and had wrongly availed input tax credit amounting to Rs.10-15 crores and passed on the same to various other buyers. It is further the case of the respondents that the petitioner indulged in such activities attracting tax/input tax credit amounting to more than Rs.10 -15 crores.
5. It is the case of the petitioner that he was called by the third respondent-Assistant Commissioner of State Tax, on 25.10.2018 for the purpose of inquiry and investigation and on the same day he had appeared before the officer. However, during the course of the inquiry, the third respondent seized the car and the mobile phones of the petitioner without drawing any panchnama and the petitioner was directly served with a seizure memo issued under section 67(2) of the GGST Act.
6. It is the case of the petitioner that the aforesaid seizure of his car and mobile phones was made without following the provisions of section 67 of the GGST Act and rule 139 of the Central Goods and Service Tax Rules, 2017 (hereinafter referred to as ‘the rules’). It is further the case of the petitioner that though a period of more than six months has passed since the car and the mobile phones came to be seized, neither has the petitioner been served with a notice under sub-section (7) of section 67 of the GGST Act nor has he been served or any order affixed at his residential premises for extension of the period of seizure by a further period of six months. It is further the case of the petitioner that he has orally made several requests to the respondents that he is ready and willing to give a bond for provisional release of the articles seized, but till date, there is no response from the respondents. The petitioner made a representation to the third respondent on 5.8.2019; however, there was no response thereto. Being aggrieved, the petitioner has filed the present petition.
7. On 27.9.2019, this court passed the following order:-
“1. This petition challenges the order of seizure dated 25.10.2018 passed by Shri B.B. Pandor, Assistant Commissioner of State Tax (1) (Enforcement), Division-1, Ahmedabad whereby the vehicle of the petitioner bearing No.GJ-01-RX-0477 and two phones have been seized. Such order of seizure has been made in exercise of power under sub-section (2) of section 67 of the Central Goods and Services Tax Act/ Gujarat Goods and Services Tax Act, 2017.
2. A perusal of the provisions of subsection (2) of section 67 of the Act reveals that the same envisages authorisation by an officer not below the rank of Joint Commissioner where he forms and opinion that the goods liable to confiscation or any documents or books or things, which in his opinion shall be useful for or relevant to any proceedings under the Act, are secreted in any place.
3. In the present case, a perusal of the impugned order shows that the details of the premises are Rajya Kar Bhavan, Ahmedabad, namely, the State Tax Office.
4. The learned Assistant Government Pleader upon a perusal of the record of the case is not in a position to point out any authorisation having been issued by a person not below the rank of Joint Commissioner for carrying out search in accordance with the provisions of subsection (2) of section 67 of the CGST/ GGST Act, 2017.
5. Under the circumstances, the impugned action of the said Officer appears to be totally without any authority of law. Moreover, since the details of the premises as stated in the impugned order is Rajya Kar Bhavan, Ahmedabad, it is manifest that no officer would permit search on such premises in accordance with the powers under sub-section (2) of section 67 of the CGST/ GGST Act, 2017.
6. In view of the above, Shri B.B. Pandor, Assistant Commissioner of State Tax (1) (Enforcement), Division-1, Ahmedabad shall be joined as respondent No. 4 in these proceedings.
7. Issue Notice to the newly joined respondent to explain as to under what circumstances and in exercise of which powers he has issued the impugned order dated 25.10.2018, returnable on 10th October, 2019.
8. Registry to forthwith forward a copy of this order to the concerned Officer.”
Accordingly, the concerned officer who passed the order of seizure has been joined as a party.
8. Mr. Maulik Vakhariya, learned advocate for the petitioner, invited the attention of the court to the impugned order of seizure to point out that the same has been passed under sub-section (2) of section 67 of the GGST Act. It was submitted that such order has been passed without any authorisation having been given to the concerned officer as contemplated under sub-section (2) of section 67 of the GGST Act. Reference was made to the impugned order to point out that in terms thereof, the premises at which the search came to be carried is Rajya Kar Bhavan, Ahmedabad. It was argued that the third respondent, being an Assistant Commissioner had not authority in law to made a seizure under section 67(2) of the GGST without him being authorised to carry out a search by a proper officer not below the rank of Joint Commissioner, and hence, the action of the third respondent of unlawfully seizing the car and the mobile phones of the petitioner is without any authority of law. It was submitted that therefore, the impugned order of seizure deserves to be set aside and the car and the mobile phones of the petitioner are required to be ordered to be released forthwith.
9. Opposing the petition, Ms. Maithili Mehta, learned Assistant Government Pleader, placed reliance upon the affidavit-in-reply filed by the respondent No.4, wherein he has stated that the issue in the present petition pertains to assessment year 2017-18 and 2018-19 and that as per the calculation of the authorities, the petitioner has defrauded the Government to the tune of Rs.13.33 crores with respect to fake billing transactions and that as per the calculation carried out by the respondent authorities, the petitioner is involved in approximately 106 fake billing transactions and has wrongfully claimed input tax credit. It is inter alia stated in the affidavit that all the billing transactions shown by the petitioner in the returns filed by him are fake bills which were prepared by the petitioner with a view to receive input tax credit and after the month of July, the petitioner has not filed any of the mandatory returns which are required to be filed under the GGST Act, 2017 and hence he has committed a statutory breach by not filing GST returns.
9.1 It is further averred in the affidavit-in‑ reply that a warrant was issued under section 71 of the GGST Act on 9.10.2018 pursuant to which the business cum residential premises of the petitioner came to be accessed by the respondent No.4, but the premises were closed since six months and the petitioner had shifted to some residential cum business premises at Sanand and that thereafter he had shifted to Gandhinagar. That the authorities tried to trace out the petitioner’s new address, but even the bank officials were not aware of his changed residence or business premises. That on receiving information that the authorities had visited his old business premises, the petitioner on his own appeared before the authority on 25.10.2018, whereupon his statement came to be recorded, in which he categorically mentioned that he was involved in billing transactions at the behest of two other persons viz. Madhav Shah and Hitendra Shah and had admitted to pay the tax as calculated by the authorities and sought an adjournment. That the petitioner did not remain present nor did he pay the amount of tax within two days as mentioned in his statement, and hence, summons came to be issued to the petitioner on 1.11.2018, which was ignored by him. On 3.11.2018 a reminder was sent to the petitioner calling upon him to give information about Madhav Shah and Hitendra Shah as well as for payment of the amount of tax which he was liable to pay as the authorities had evidence to the effect that the petitioner was involved in billing transactions.
9.2 It is further averred in the affidavit-inreply that the petitioner had filed an application for anticipatory bail before the Sessions Court, which came to be rejected and that the petitioner has preferred an application for anticipatory bail before the High Court which is pending. It is further averred that the petitioner has not co-operated with the authorities in providing information as to at whose behest he was working for fake bills. It is further stated that the authority had exercised powers under section 71 read with section 67(2) of the GGST Act by seizing the said vehicle and the mobile phones for the simple reason that the petitioner does not possess any other property either movable or immovable in nature and the petitioner is residing in rental premises situated at Gandhinagar.
9.3 The learned Assistant Government Pleader submitted that it is in the backdrop of the aforesaid gross facts which have come on record, that the officer concerned has exercised powers of seizure and seized the vehicle in question. It was submitted that the action taken by the concerned officer was a bona fide action taken in the interest of revenue and the petitioner is not entitled to the grant of any of the reliefs prayed for in the petition.
10. In this case, the impugned order of seizure dated 25.10.2018 has been made in exercise of powers under sub-section (2) of section 67 of the GGST Act and hence, it would be germane to refer to section 67 of the GGST Act, which to the extent the same is relevant for the present purpose, reads as under:-
“67. Power of inspection, search and seizure.-(1) Where the proper officer, not below the rank of Joint Commissioner, has reasons to believe that–
(a) a taxable person has suppressed any transaction relating to supply of goods or services or both or the stock of goods in hand, or has claimed input tax credit in excess of his entitlement under this Act or has indulged in contravention of any of the provisions of this Act or the rules made there under to evade tax under this Act; or
(b) any person engaged in the business of transporting goods or an owner or operator of a warehouse or a go down or any other place is keeping goods which have escaped payment of tax or has kept his accounts or goods in such a manner as is likely to cause evasion of tax payable under this Act, he may authorise in writing any other officer of central tax to inspect any places of business of the taxable person or the persons engaged in the business of transporting goods or the owner or the operator of warehouse or godown or any other place.
(2) Where the proper officer, not below the rank of Joint Commissioner, either pursuant to an inspection carried out under sub‑ section (1) or otherwise, has reasons to believe that any goods liable to confiscation or any documents or books or things, which in his opinion shall be useful for or relevant to any proceedings under this Act, are secreted in any place, he may authorise in writing any other officer of central tax to search and seize or may himself search and seize such goods, documents or books or things:
Provided that where it is not practicable to seize any such goods, the proper officer, or any officer authorized by him, may serve on the owner or the custodian of the goods an order that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of such officer:
Provided further that the documents or books or things so seized shall be retained by such officer only for so long as may be necessary for their examination and for any inquiry or proceedings under this Act.
(3) The documents, books or things referred to in sub-section (2) or any other documents, books or things produced by a taxable person or any other person, which have not been relied upon for the issue of notice under this Act or the rules made thereunder, shall be returned to such person within a period not exceeding thirty days of the issue of the said notice.
(4) xxxx
(5) xxx
(6) xxxx
(7) Where any goods are seized under sub‑ section (2) and no notice in respect thereof is given within six months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized:
Provided that the period of six months may, on sufficient cause being shown, be extended by the proper officer for a further period not exceeding six months.
(8) xxxxx
(9) xxx
(10) xxx
(11) xxxxx
(12) xxxx”
11. A perusal of the impugned order of seizure shows that the same has been issued in Form GST INS-02 prescribed under rule 139(2) of the CGST Rules. Rule 139 of the CGST Rules relates to inspection, search and seizure. Sub-rule (1) thereof provides for issuance of authorisation in Form GST INS-01 by the proper officer not below the rank of Joint Commissioner authorising any officer subordinate to him to conduct the inspection or search or, as the case may be, seizure of goods, documents or things liable to confiscation. Sub-rule (2) thereof provides that any goods, documents, books or things are liable to seizure under sub-section (2) of section 67, the proper officer or an authorised officer shall make an order of seizure in Form GST-INS-02. Sub-rule (5) thereof provides that the officer seizing the goods, documents, books or things shall prepare an inventory of such goods or documents or books or things containing inter alia, descrip
12. It is in the backdrop of the aforesaid statutory provisions that the validity of the action taken by the respondent No.4 is required to be tested.
13. In this case, the respondent No.4 – Assistant Commissioner has exercised powers under sub‑ section (2) of section 67 of the GGST Act. It may be noted that the order of seizure merely refers to section 67(2) without reference to the relevant enactment. In the order it is stated that he is seizing the goods/books/documents and things referred to therein in exercise of powers conferred on him under sub-section (2) of section 67 as on scrutiny of books of account, registers, documents/ paper and goods found during the inspection/search, he has reasons to believe that certain goods liable to confiscation and or documents and/or books and/or things useful or relevant to proceedings under that Act are secreted in the place mentioned above. Interestingly, in the seizure order, the place where the documents and/or books and/or things useful or relevant for the proceedings are secreted is stated to be “Rajya Kar Bhavan” namely the State Tax Office. Thus, according to the respondent No.4, the petitioner has secreted goods/books/ documents and things at the State Tax Office and therefore, search is required to be carried out of those premises.
14. It may be pertinent to note that in the order dated 27.09.2019, whereby the respondent No.4 was made a party respondent by name, it was specifically recorded that the learned Assistant Government Pleader, upon perusal of the record of the case is not in a position to point out any authorisation having been issued by a person not below the rank of Joint Commissioner for carrying out search in accordance with the provisions of sub-section (2) of section 67 of the CGST/GGST Act, 2017. Therefore, the respondent No.4 was required to show as to whether he had passed the seizure order on the basis of any authorisation given to him by the proper officer as envisaged in sub-section (2) of section 67 of the GGST Act. However, in the affidavit-in-reply filed by the respondent No.4 or even on the basis of the record, no material has been produced before this court to show that respondent No.4 was authorised by the proper officer to search any premises or seize any goods, documents, books or things under sub-section (2) of section 67 of the GGST Act in the case of the petitioner. Thus, it is an admitted position that the respondent No.4 – Assistant Commissioner was not conferred any power under sub-section (2) of section 67 of the GGST Act to carry out any search or inspection as stated in the order of seizure dated 25.10.2018. The impugned order has therefore, been passed without any authority of law. Consequently, the seizure of the car and the mobile phones belonging to the petitioner is illegal, arbitrary and is not backed by any authority of law.
15. As can be seen from the impugned order, in the table indicating the goods, books, documents and things seized, the second column relates to description/ books/documents/things seized. Below the said column, the respondent has merely referred to two phones indicating the make and a vehicle bearing number GJ-1-RX-0477. The vehicle is referred to only by its number without mentioning the make/mark or model. From the order of seizure, it is not possible to ascertain the make or model or the condition of the vehicle seized. A perusal of the impugned order further reveals that against the name of person to whom the premises where the search is carried out belong, nothing has been stated and it has been left blank and against the names of witnesses, the petitioner’s name and address has been shown. At the end of the order, the names of the witnesses are shown without complete addresses, making it impossible to identify the witnesses.
16. Thus, not only has the order of seizure been made without any authority of law, the order of seizure also suffers from various deficiencies as referred to herein above. It is, therefore, apparent that the entire exercise of seizing the car and the mobile phones of the petitioner is nothing but a farce under the guise of exercise of statutory powers without obtaining the necessary authorisation, and a blatant show of brute force by a high ranking officer in gross abuse of powers. The explanation given in the affidavit-in-reply as regards the illegalities alleged to have been committed by the petitioner, does not give the fourth respondent a licence to act in excess of the powers vested in him. Such action on the part of the respondent No.4 cannot be countenanced even for a moment.
17. It may be noted that on 25.9.2019, this court had passed an order in the following terms:-
“1. Mr. Maulik Vakhariya, learned advocate for the petitioner has invited the attention of the court to the order of seizure made under rule 139(2) of the Goods and Services Tax Rules, 2017, to point out that the petitioner’s car bearing No.GJ-01- RX-0477 has been seized at the Rajya Kar Bhavan, Ahmedabad. The attention of the court was invited to the provisions of sub-section (2) of section 67 of the CGST Act which finds reference in the order of seizure, to point out that the same relates to power of inspection, search and seizure. It was submitted that the petitioner’s car came to be seized when the petitioner had gone to the tax office for attending some proceeding there. It was submitted that the impugned order of seizure is totally without any authority of law, inasmuch as, sub-section (2) of section 67 of the CGST Act does not empower the respondents to act in such an arbitrary manner.
2. Having regard to the submissions advanced by the learned advocate for the petitioner, Issue Notice returnable on 27th September, 2019. Direct service is permitted today.”
Thereafter, on 27.9.2019 this court had passed an order as recorded hereinabove. Despite the aforesaid position, the respondent No.4 has not thought it fit to release the vehicle of the petitioner without specific directions being issued by this court and has continued with the illegal action of the seizure of the petitioner’s car and the mobile phones.
18. Besides, in the affidavit-in-reply, the respondent No.4 has the gumption to state that none of the fundamental rights of the petitioner have been violated because of any action or inaction on the part of the said respondent. Though a specific order was passed with reference to the relevant statutory provisions, the respondent No.4 has not stated as to whether or not he was authorised to conduct any search and all that he stated is that the authorities had exercised powers of section 71 read with section 67(2) by seizing the said vehicle and the mobile phones for the simple reason that the petitioner did not possess any property viz. movable or immovable property in nature, and that in fact the petitioner was residing in rental premises situated at Gandhinagar. Thus, from the tenor of the affidavit-in-reply, it appears that the respondent No.4 passed the order under section 67(2) of the GGST Act to protect the interest of the revenue.
19. In this regard, it may be noted that the powers to attach the property to protect the interest of the revenue are conferred by section 83 of the GGST Act. However, a condition precedent for exercise of powers under section 83 of the GGST Act is that any proceeding should be pending under section 62 or section 63 or section 64 or section 67 or section 73 or section 74 thereof. In the present case, no proceeding under any of the above sections is stated to have been pending against the petitioner at the time when the order of seizure came to be made. The only proceeding which finds reference in the affidavit-in-reply is under section 71 of the GGST Act which relates to access to business premises. As is apparent of a plain reading of section 83 of the GGST Act, the same does not empower the Commissioner to take action thereunder during the pendency of proceedings under section 71 of the GGST Act. Therefore, the impugned order of seizure made by the respondent No.4 is not relatable to any provision of the GGST Act. Therefore, it is not even possible to say that the provision referred to in the impugned order is incorrect but that the respondent No.4 was otherwise vested with such powers. Under the circumstances, the inescapable conclusion is that the respondent No.4 has acted without any authority of law and in gross abuse of powers, which renders the impugned order of seizure, unsustainable.
20. However, having regard to the gross abuse of powers on the part of the respondent No.4, merely setting aside the impugned order will not meet the ends of justice, inasmuch as, petitioner has been deprived of the use of his vehicle and his two mobile phones for a period of almost one year on account of such unauthorised action on the part of the fourth respondent and is therefore required to be adequately compensated in that regard. The officers acting under the GGST Act should well understand that they are required to act within the confines of the powers vested in them, that too, in a just and proper manner and should not exceed the powers vested in them or use the wide powers vested in them under the GGST Act as a tool for harassing the persons covered under that Act.
21. At this juncture it may be germane to refer to the provisions of section 157 of the GGST Act which reads thus:-
“157.Protection of action taken under this Act.
(1) No suit, prosecution or other legal proceedings shall lie against the President, State President, Members, officers or other employees of the Appellate Tribunal or any other person authorised by the said Appellate Tribunal for anything which is in good faith done or intended to be done under this Act or the rules made thereunder.
(2) No suit, prosecution or other legal proceedings shall lie against any officer appointed or authorised under this Act for anything which is done or intended to be done in good faith under this Act or the rules made thereunder.”
22. Sub-section (2) of section 157 of the GGST Act gives immunity to an officer appointed or authorised under that Act for anything which is done or intended to be done in good faith under that Act or the rules made thereunder. Thus, an officer is protected provided he is authorised to do something under the GGST Act and provided such act has been done in good faith. Therefore, it was incumbent upon the respondent No.4 to show whether he has been authorised by a person not below the rank of Joint Commissioner to carry out the search and that the action taken by him was in good faith failing which, he is not entitled to the immunity provided under section 157 of the GGST Act.
23. In the opinion of this court, when an officer functioning under the GGST Act, acts in a highhanded and arbitrary manner in excess of the authority vested in him the same is required to be viewed very seriously. Justice demands that such citizen be compensated for the undue harassment faced by him on account of the unauthorised action of the concerned officer. This court is, therefore, inclined to award exemplary costs in favour of the petitioner.
24. However, it may be noted that the learned advocate for the petitioner, under instructions of the petitioner, has requested this court not to pass any orders which may affect the respondent No. 4 personally and has further stated that he is not interested in getting any compensation for the damage suffered by him on account of the arbitrary and unlawful action of the respondent No.4. It is evident as to why the petitioner has taken such a stand. The said request of the petitioner seems to emanate from the fact that the petitioner who is covered by the Goods and Services Tax Act has to deal with the officer concerned day in and day out and is, therefore, afraid of taking any action against him out of fear of facing reprisal for his action as the entire department would be up in arms against him and he would have to face untold harassment in future. Therefore, at the request of the petitioner, the court refrains from passing any order of exemplary costs.
25. For the foregoing reasons, the petition succeeds and is accordingly allowed. The impugned order of seizure dated 25.10.2018 passed by the respondent No.4, is hereby quashed and set aside and the respondent NO.4 is directed to forthwith release the vehicle as well as to mobile phones of the petitioner and hand them over to him.
26.As noted herein above, this court was inclined to award exemplary costs in the matter; however, at the request of the petitioner, the court has refrained from passing such order. However, the registry is directed to forthwith communicate this order to the Chief Secretary of the State to bring it to his notice the manner in which the provisions of the GGST Act are being implemented by the officers functioning thereunder. It is also expected that appropriate action will be taken in this regard.
27. Rule is made absolute accordingly, with costs. Direct service is permitted.
