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EVIDENCE UNDER MODEL GST LAW

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EVIDENCE UNDER MODEL GST LAW
By: Mr. M. GOVINDARAJAN
January 10, 2017
  • Contents

Evidence

The adjudication procedure in tax matters are not of a elaborate one and only summary nature of trial. However the evidence plays a vital role in this procedure. A show cause notice issued by the authority is to enclose the documents/information relied on by him to the assessee. Likewise the assessee, while giving reply to the show cause notice, along with the reply he is to submit documents as evidence in support of his defence. If the evidences put forth by the assessee have not been taken by the adjudicating authority, then it will amount to violation of the principles of Natural Justice. The authorities may presume certain documents as to evidence to this case. The Goods and Services Tax Act, 2016 (Model law) (‘Act’ for short) provides for the admissibility of certain documents as evidence and also the provisions for presumption as to documents in certain cases.

Admissibility of documents as evidence

Section 126 deals with the admissibility of-

  • micro films;
  • facsimile copies of documents; and
  • computer print outs

as documents and taken as evidence.

Deemed document

Section 126 (1) of the Act provides that notwithstanding anything contained in any other law for the time being in force the following shall be deemed to be a document for the purposes of this Act and the rules made there under-

  • a micro film of a document or the reproduction of the image or images embodied in such micro film, whether enlarged or not; or
  • a facsimile copy of a document; or
  • any information stored electronically in any device or media, including any hard copies made of such information.

The above documents shall be admissible in any proceedings without further proof or production of the original as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.

Computer print outs as document

The explanation to Section 126 defines the term ‘computer’ as any device that receives, stores and processes data, applying stipulated processes to the information and supplying results of these processes and includes the hard disc thereof or a mirror image of hard disc thereof.

Section 126(3) provides that where over any period, the functioning of storing or processing information for the purposes of any activities regularly carried on over that period was regularly performed by that computers, whether-

  • by a combination of computers operating over that period; or
  • by different computers operation in succession over that period; or
  • in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers,

all the computers used for that purpose during that period shall be treated for the purposes of Section 126 as constituting a single computer and references in this Section to a computer shall be construed accordingly.

A statement contained in a document and included in a printed material produced by a computer is admissible as evidence if the following conditions and other provisions contained in this section are satisfied in relation to the statement and the computer in question-

  • the computer printout containing the statement was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
  • during the said period, there was regularly supplied to the computer in the ordinary course of the said activities, information of the kind contained in the statement or of the kind from which the information so contained is derived;
  • the computer was operating properly throughout the material period or if not in operation was not such as to affect the production of the document or the accuracy of the contents; and
  • the information contained in the statement reproduced or is derived from information supplied to the computer in the ordinary course of the said activities.

Certificate as evidence

Section 126(4) provides that in any proceedings under this Act and the rules made there under where it is desired to give a statement in evidence by virtue of this Section, a certificate doing any of the following things-

  • identifying the document containing the statement and describing the manner in which it was produced;
  • giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer;
  • dealing with any of the matters to which conditions mentioned in Section 126(2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities, shall be evidence of any matter stated in the certificate;
  • it is sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

Supply of information

 Section 126(5) provides that for the purpose of Section 126-

  • information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or by means of any appropriate equipment;
  • whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of these activities;
  • a document shall be taken to have been produced by a computer whether it was produced by it directly or by means of any appropriate equipment.

Presumption as to documents in certain cases

Section 125 provides that where any document-

  • is produced by any person under the Act or any other law; or
  • has been seized from the custody or control of any person under the Act or any other law; or
  • has been received from any place outside India in the course of any proceedings under the Act or any other law

and such documents is tendered by the prosecution in evidence against him or any other person who is tried jointly with him, the court shall-

  • unless the contrary is proved by such person, presume-
  • the truth of the contents of such document;
  • that the signature and every other part of such document which purports to be in the handwriting of any particular person or which the Court may reasonable assume to have been signed by, or to be in the handwriting of, any particular person, is in that person’s handwriting, and in the case of a document executed or attested, that it was executed or attested by the person by whom it purports to have been so executed or attested;
  • admit the document in evidence notwithstanding that it is not duly stamped, if such document is otherwise admissible in evidence.

 

By: Mr. M. GOVINDARAJAN - January 10, 2017

 

 

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