CBIC: No need for summons seeking documents already available on the GST portal

The Central Board of Indirect Taxes and Customs (CBIC) observed certain discrepancies in the issue of summons under Section 70 of the CGST Act by the tax officers. The Commissioner of GST-Investigation at the CBIC, Shri Vijay Mohan Jain, has released a fresh set of instructions to its officers to streamline the process of investigations under the Goods and Services Tax(GST) law.

The authority has observed that officers are not judiciously using their power to call taxpayers by issuing summons. They have to exercise due consideration while using this power. There can be instances where only a letter of requisition of information becomes sufficient to get the necessary information. 

Under the GST law, an officer can issue summons to any person calling for his attendance to give evidence or share documents or such information. The law considers this as an inquiry by the officer. Hence, the officer issuing summons gets the power entrusted with the civil court as per the Code of Civil Procedure, 1908.

Further, the law states that obtaining any oral or documentary evidence by the above means is judicial proceedings as per the Indian Penal Code. The Commissioner further mentioned that the matter was also previously clarified under the pre-GST laws but has become necessary to reiterate under the present GST laws.

Following are the set of instructions regarding investigation and issue of summons-

• Superintendents have the power to issue summons after taking the permission of an officer of the rank equal to or higher than the Deputy or Assistant Commissioner. They must mention the reasons for issuing the summons.
• Suppose such superintendents cannot obtain prior written permission on account of operational hassles. In that case, they can orally or telephonically secure permission and later put it into writing, informing the relevant officer.
• Higher officers can also exercise power to issue the summons.
• All officers permitting or issuing the summons must maintain records about the attendance or absence of the summoned person and their statement in copy.
• The officers must avoid issuing repeated summons without noting the service of summons. Although there is no upper limit to issuing summons to persons repeatedly for not appearing, officers can issue three summons at reasonable time intervals.
• If the person summoned does not still appear, then a complaint is registered with the jurisdictional magistrate. Such an act of not attending when called is deemed an offence under the Indian Penal Code (Absconding to avoid service of summons) as this has judicial implications. Before raising such a complaint, the officers must confirm that the intended persons were served with the summons.

The following are essential aspects that any person who GST officers or superintendents summon-

• Summons under GST is not a mandatory requirement. A letter for information requisition can also be used based on the officer’s discretion.
• Summons without the proper permission of the officer is not valid.
• The summons will usually contain the name of the offender under investigation. But sometimes, the name will not be revealed if it is considered detrimental to the investigation. The purpose of doing this is to let a summoned person know if they are the accused, co-accused, or only a witness.
• Online or digitally available statutory documents on the GST portal, such as the GSTR-1, GSTR-3B, submitted returns and forms, etc., do not need summons.
• The officers cannot issue summons to the CFO/CTO/CEOs/MD and senior management of the enterprise when they are not directly involved in revenue loss by their decisions.
• A valid summons must comply with the format notified in the CBIC’s Circular No 128/47/2019-GST issued on 23rd December 2019 and must also mandatorily contain a unique Document Identification Number (DIN).
• Note that the summoning officer must also be present at the date and time of the attendance given in the summons. Otherwise, this matter must be informed in advance, either in writing or orally.
• Ensure that all persons mentioned in the summon appear. However, exceptions are allowed, such as women who traditionally need not appear in public or privileged persons listed as per the investigation rules under Sections 132 and 133 of the Code of Civil Procedure.
• A complaint can be registered under Sections 172 and 174 of the Indian Penal Code against summoned persons if they fail to attend or serve the summons issued thrice.

For any clarifications/feedback on the topic, please contact the writer at annapoorna.m@clear.in