TMI Blog2024 (1) TMI 287X X X X Extracts X X X X X X X X Extracts X X X X ..... gly indicated in an instrument does not render the instrument invalid - this Court is not inclined to hold that the impugned Notification No. 14/2014 dated 01.07.2017 is ultra vires to the powers provided to the Government under the CGST Act, 2017. From a bare reading of Section 70 of the CGST Act, 2017, it clearly emerges that the proper officer has the power to summon any person whose attendance he considers necessary either to give evidence or to produce the documents in any inquiry in the same manner in the case of a Civil Court under the Civil Procedure Code - the respondents are proper officer in relation to the function to be performed under the CGST Act, 2017 as contemplated under Section 2 (91) of the CGST Act, 2017, and as such, was entitled to issue summons under Section 70 of the CGST Act, 2017 in connection with the inquiry initiated against the petitioner. In the instant case, the petitioners having made payment under Section 74 (5) of the CGST Act, 2017, they appear to have informed the Proper Officer of such payment in the Form GST DRC-03 (Annexure No. 7) as contemplated in Rule 142(2) of the said Rules. It is needless to say that the said payment shall be d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DGSI ), who had reasons to believe that documents related to search were secreted at the premises of the petitioner, authorized Intelligence Officers (arrayed as respondent Nos. 5 to 8) to conduct inspection/ search at the premises of the petitioner on 06.06.2023 under Section 67 of the CGST Act, 2017, wherein a punchnama of the said inspection/search was also got prepared by the authority. (4) It is the case of the petitioner that although during the aforesaid inspection/search, the Intelligence Officer of DGSI were apprised about an ongoing enquiry being conducted by the Anti Evasion Wing of CGST and apparently a summon dated 16.05.2023 had also been issued by the said Anti Evasion Wing for the period November, 2018 to March, 2023, however, the petitioner was coerced to deposit an amount of Rs. 40,00,000/- under the threat of arrest by the said officers of DGSI, who also issued summon dated 06.06.2023 under Section 70 of the CGST Act, 2017 and called for the following information :- (i) Ledger of purchase and sale for the period November 2018 to till date; (ii) Ledger of ITC and details of ITC available for the period November, 2018 to till date; (iii) Bank sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officer of Central Tax. (7) Thus, it has been contended by the learned Counsel for the petitioner that although the Central Government under the power conferred under Section 3 of the CGST Act, 2017 has issued the impugned Notification No. No. 14/2017- Central Tax and appointed the officers of DGSI as Central Tax Officers and also invested it with all the powers that are exercisable by the officers of corresponding ranks, however, according to him Section 3 of the CGST Act, 2017 only confers the power on the Central Government to appoint the class of officers by way of notification and does not permit them the authority to confer any power to such appointed officers. Simply put forward, according to the learned Counsel, the legislature has invested the authority to delegate the functions of proper function upon the Commissioner in Board, however, no such authority has been conferred upon the Central Government and as such the jurisdiction exercised by the Central Government in issuance of Notification No. 14/2017- Central Tax is ultra vires to Section 5 of the CGST Act, 2017 and other provisions of the said Act. (8) It has been submitted by the petitioner that the Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i : 2011 (265) ELT 179S.C) have also been pressed for the proposition of subordinate legislation. (10) Per contra, the learned Counsel for the respondents have controverted the arguments of the petitioner and the learned Standing Counsel for Central board of Indirect Taxes Customs appearing for respondent Nos.2 and 3 has also chosen to file a written arguments. It has been the common ground of the respondents that the impugned Notification No. 14/2017 dated 1/7/2017 has subsequently been corrected through corrigendum dated 29/07/2019 by virtue of which the word the Central Board of excise and Customs has been omitted and in place thereof the word the Government has been inserted in the said impugned notification. The learned Counsel has also submitted that the present writ petition has been filed on misinterpretation and misconception of powers of the Central Government, inasmuch as Section 3 of the CGST Act, 2017 vividly says that the Government is the only authority, which can appoint the officers for the purpose of the CGST Act, 2017 through notification and further Section 4 of the CGST Act, 2017 empowers the Central Board of Indirect Taxes to appoint such offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... validity of Notification No. 14/2017 dated 1/7/2017 and as such this Court finds apt to first deal with the said aspect. (12) At the outset, it may be noted that the submissions made by the learned Counsel for the petitioner appears to be very attractive in the first blush, however, a deeper investigation into the submissions made by the learned Counsel for the petitioner would reveal that the same is without any substance. In order to appreciate his submissions, it would be beneficial to note that the impugned Notification No. 14/2017 Central Tax dated 01.07.2017 inter-alia states :- In exercise of the power conferred under section 3 read with section 5 of the Central Goods and Services Tax Act, 2017 ( 13 of 2017), the Central Board of Excise and Customs hereby appoints the officers in the Directorate General of Goods and Service Tax Intelligence, Directorate General of Goods and Service Tax, Directorate General of Audit as specified in column(2) of the Table below, as central Tax Officers and invest them with all the powers under the Central Goods and Service tax Act, 2017 and the Integrated Goods and Services Tax Act, 2017 and the rules made there under, throughout th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny other officer of Central Tax, who is subordinate to him. Section 5(3) of the CGST Act, 2017 says that the Commissioner may delegate his powers to any other officer who is subordinate to him subject to conditions and limitation as may be specified by him. Thus, it can be safely said that section 5 of the CGST Act provides that any officer who has been so appointed must be assigned / entrusted / invested with specified powers under CGST Act to enable him to perform those functions. (15) Apparently, unless these processes are undertaken, an officer cannot perform the functions under the law. The functions are specified in various provisions where either it is assigned to a class of officers or to a Proper Officer . A Proper Officer as per Section 2(91) of the CGST Act, 2017 is a Commissioner or the officer of the Central Tax, who has been assigned that function by the Commissioner in the Board. Thus, assignment of function to a specific class of officers is an inevitable requirement. (16) Vide Notification No. 02/2017-Central Tax dated June 19, 2017 issued under Section 3 read with Section 5 of the CGST Act, 2017, the Central Government appointed classes of officers fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1963 relating to Constitution of Central Boards for Indirect Taxes and Customs says that it is the Central Government, which shall constitute the Central Board of Indirect Taxes and Customs and the said Board shall be subject to the control of the Central Government and shall exercise such powers and perform such duties, as may be entrusted to that Board by the Central Government or by or under any law. Thus, it appears that the Board is subservient to the Government under the Act and it could be well argued that when the power has been invested with the Board to do certain things, how can the Government not exercise such a power. (19) However, the question of investing powers on the central tax officers by the Board or the government does not end there as this court finds that the Circular No.3/3/2017-GST dated July 5, 2017 (Annexure-11) issued by the Commissioner in Board relates to assignment of various functions under CGST Act, 2017 to different class of officers, who had been construed to be DGSI officers in terms of Notification No. 14/2017. (20) A conjoint reading of Notification No. 14/2017 dated 01.07.2017 and Circular No. 3/3/2017-GST dated 05.07.2017 suff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 (5 of 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 (45 of 1860). (23) From a bare reading of Section 70 of the CGST Act, 2017, it clearly emerges that the proper officer has the power to summon any person whose attendance he considers necessary either to give evidence or to produce the documents in any inquiry in the same manner in the case of a Civil Court under the Civil Procedure Code. Now, as per the definition of 'proper officer' as contained in Section 2 (91) of the CGST Act, 2017, a 'proper officer' in relation to any function to be performed under the CGST Act, 2017 means the Commissioner or the Officer of the Central Tax, who is assigned that function by the Commissioner in the Board. It is pertinent to note that as stated in the petition itself, the respondent No.4 to 8 is an officer of Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the officers the functions as that of proper officers in relation to the various Sections of the CGST Act, 2017 and the Rules made thereunder, and as such the Superintendent of Central Tax has been assigned the function of Section 70(1) of the CGST Act, 2017. Thus, there being no delegation of powers by the Commissioner, the provisions contained in Section 167 of the CGST Act, 2017 could not be said to have been attracted, nor was there any necessity to issue any such Notification. The Court, therefore, does not find any substance in the submission of the Ld. Counsel that the respondent No. 4 to 8 was not the 'proper officer' as per the definition contained in Section 2(91) of the CGST Act, 2017 and therefore, had no powers to issue summons under Section 70 of the CGST Act, 2017. (25) This Court also does not find any force in the submission made by learned Counsel for the petitioner that two parallel proceedings in connection with the same issue were not sustainable. It may be noted that the communication dated 10.05.2023 was issued by the Anti-Evasion Department of the GST for limited inquiry in connection with irregular availment of ITC during the period 2018- 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
