ACCESS TO BUSINESS PREMISES UNDER GST LAW

[Dr. Sanjiv Agarwal]

Section 71 of the CGST Act, 2017 contains provisions for Access to business premises.

Access to business premises [Sub-Section 1]

The term ‘access’ has not been defined in the GST law. However, ‘access’ does not mean inspection or search. ‘Access’ literally means approach or the means or power of approaching. According to section 2(1)(9) of Information Technology Act, 2000, ‘access’ with its grammatical variations and cognate expressions means gaining entry into, instructing or communicating with the logical, arithmetical, or memory function resources of a computer, computer system or computer network.

As per section 71 of the CGST Act, 2017 any proper officer duly authorized by the Joint Commissioner of GST is empowered to have access to any business premises. Such authorization shall be in writing and shall be restricted to business premises of the taxable person.

Rule 139(1) provides that the proper officer (Additional Commissioner or Joint Commissioner of Central Tax) shall issue an authorization in Form GSTN INS-01 authorizing any other officer subordinate to him to conduct his inspection or search or, seizure of goods, documents, books or things liable to confiscation.

The access to business premises shall be for the carrying out of inspection. Accordingly, any proper officer authorized by the additional/joint commissioner of proper shall have access to any business premises to inspect-

• books of account,
• documents,
• computers,
• computer programs,
• computer software (whether installed in a computer or otherwise), and
• such other things as he may require and which may be available at such place.

According to section 71(1), inspection may be for the purposes of carrying out any audit, scrutiny, verification and checks as may be necessary to safeguard the interest of revenue.

This provision facilitates access to a business premise which is not registered by a taxable person as a principal or additional place of business but has books of accounts, documents, computers etc which are required for audit or verification of accounts of a taxable person.

Duty of person in charge of premises (sub-section 2)

According to section 71(2), every person in charge of shall, place of business on demand made by:

• officer authorized, or
• the audit party deputed by the Additional/Joint Commissioner of GST or SGST, or
• a cost accountant nominated to carry out special audit, or
• a chartered accountant nominated to carry out special audit shall make available or provide the following:
• the records as prepared or maintained by the registered taxable person and declared to the proper officer as may be prescribed;
• trial balance or its equivalent;
• Statements of annual financial accounts, duly audited, wherever required;
• cost audit report, if any, under section 148 of the Companies Act, 2013;
• income-tax audit report under section 44AB of the Income-tax Act, 1961; and
• any other relevant record;

for the purpose of scrutiny or audit within a reasonable time, not exceeding fifteen working days from the day when such demand is made, or such further period as may be allowed by the said officers/audit party/chartered accountant /cost accountant etc.

The list of documents is considered illustrative. Certain documents are specifically listed in this provision but if any other relevant records are maintained at the said premises, they may also be required to be produced.

The records / documents should generally be made available within 15 working days of requisition or extended period as may be allowed.

Objective of access to business premises (sub-section 2)

The provisions of section 71 are aimed at carrying out the following :

(i)        Audit

(ii)       Scrutiny

(iii)     Verification

(iv)      Checks

as may be necessary to protect the interest of revenue.

Who can requisition documents ?

The documents / records may be called for by any one or more of the following persons:

(i)        Authorized officer under section 71(1)

(ii)       Audit party under section 65

(iii)     Chartered Accountant / Cost Accountant appointed by Department for special audit under section 66

Guidelines for access to business premises

State Government have been issuing guidelines in the form of Standard Operating Procedures (SOP’s) in relation to inspection of business premises. Such SOP’s generally provide guidance on the following issues:  

• Circumstances under which the access to the business premises of registered persons is available
• Proper officer to issue authorization for access to the business premises of a registered person and the officer to whom such authorization can be given
• Conditions required to be satisfied before issue of access authorization
• Procedure for issue of authorization for access to the business premises of a registered person
• Issue of system based access authorization
• Maintenance of access registers
• Procedure to be followed by authorized officer after receiving the access authorization
• Post access procedure to be followed by authorized officer
• Initiation of assessment proceedings after completion of process of visit