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Introduction :
With economic liberalization, the stress is on voluntary compliance with tax laws.
Consistent failure on the part of assessees or entities to declare correct income
invites penal provisions of the Act as also search and seizure operations. The
method of search and seizure for unearthing black money is adopted by the Income
Tax Department only in cases where there is sufficient reason to believe that the
person concerned would not disclose the true picture of his income in the normal
course of filing of return and regular assessment.
Search means not looking for something which is produced or Open but which is
hidden, concealed or not obvious. The word has varied meanings and it should be
given the general meanings ‘to look for’ or 'to seek’ which are well known meaning
attributable to the word in the Section 67(10) of CGST/SGST Act prescribes that
searches must be carried out in accordance with the provisions of Code of Criminal
Procedure, 1973 . Section 100 of the Code of Criminal Procedure describes the
procedure for search.
In order to find something concealed or for the purpose of discovering evidence of a
crime. The search of a person or vehicle or premises etc. can only be done under
proper and valid authority of law.
The article below tells us about the search and seizures under the good and service
tax.
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Law procedure:
Power of Inspection, Search and Seizure (section 67)
• Safeguards and basic requirements to be observed during search
• Inspection of goods in movement (section 68)
• Power to arrest (section 69)
• Safeguards in relation to arrest
• Difference between cognizable and noncognizable offence
• Power to summon (section 70)
• CBEC guidelines on issuing summons
• Access to business premises (section 71)
• Officers required to assist CGST/SGST officers (section 72)
Meaning of ‘Search’ and ‘Seizure’:
Search means “not looking for something which is produced or Open but which is
hidden, concealed or not obvious”. The word has varied meanings and it should be
given the general meanings ‘to look for ’ or ‘to seek’ which are well known meaning
attributable to the word in the context of section 67. It also means taking possession
of the record etc. for the purpose of inspection. It includes a thorough inspection of
the building, place, vessel, and aircraft and of the person.
‘Seizure” means the authority to take possession of records etc outside the
possession of the person. It is thus an expression which implies a forcible exaction or
taking possession from either the owner or one who has possession and who is
unwilling to part with possession.
Search Warrant contents:
Search warrant can be issued if Joint Commissioner has reasons to believe pursuant
to an inspection or otherwise that goods liable to confiscation or any documents or
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books or things relevant to any proceedings are secreted in any place [Section 67(2)]
• Inspection or search authorization to be issue in Form GST INS01 [Rule 139(1) of
CGST Rules]
The written authority to conduct search is generally called search warrant. The
competent authority to issue search warrant is an officer of the rank of Joint
Commissioner or above. A search warrant must indicate the existence of a
reasonable belief leading to the search. Search Warrant should contain the following
details:
i. the violation under the Act,
ii. the premise to be searched,
iii. the name and designation of the person authorized for search,
iv. the name of the issuing officer with full designation along with his round seal,
v. date and place of issue,
vi. serial number of the search warrant,
vii. period of validity i.e. a day or two days etc.
Basic requirements to be observed
during Search operations:
The following principles should be observed during Search:
● No search of premises should be carried out without a valid search warrant
issued by the proper officer.
● There should invariably be a lady officer accompanying the search team to
residence.
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● The officers before starting the search should disclose their identity by
showing their identity cards to the person incharge of the premises.
● The search warrant should be executed before the start of the search by
showing the same to the person incharge of the premises and his signature
should be taken on the body of the search warrant in token of having seen the
same. The signatures of at least two witnesses should also be taken on the
body of the search warrant.
● The search should be made in the presence of at least two independent
witnesses of the locality. If no such inhabitants are available
● /willing, the inhabitants of any other locality should be asked to be witness to
the search. The witnesses should be briefed about the purpose of the search.
● Before the start of the search proceedings, the team of officers conducting the
search and the accompanying witnesses should offer themselves for their
personal search to the person incharge of the premises being searched.
Similarly, after the completion of search all the officers and the witnesses
should again offer themselves for their personal search.
● A Panchnama / Mahazar of the proceedings of the search should necessarily
be prepared on the spot. A list of all goods, documents recovered and
seized/detained should be prepared and annexed to the
Panchnama/Mahazar. The Panchnama / Mahazar and the list of goods/
documents seized/detained should invariably be signed b y the witnesses, the
incharge/ owner of the premises before whom the search is conducted and
also by the officer(s) duly authorized for conducting the search.
● After the search is over, the search warrant duly executed should be returned
in original to the issuing officer with a report regarding the outcome of the
search. The names of the officers who participated in the search may also be
written on the reverse of the search warrant.
● The issuing authority of search warrant should maintain register of records of
search warrant issued and returned and used search warrants should be kept
in records.
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● During search, the authorised officer can force open door of any premises and
break open any almirah, box, electronic devices etc. in which he suspects that
any goods, accounts or documents are concealed and access to which is
denied • The authorised officer can also seal the premises where the access
is denied
● A copy of the Panchnama / Mahazar along with its annexure should be given
to the person incharge/owner of the premises being searched under
acknowledgement.
● SAFEGUARDS: • Certain safeguards are provided in respect of power of
search and seizure. These are:
● • Seized goods or documents should not be retained beyond the period
necessary for their examination;
● • Provisional release of seized goods upon execution of Bond and furnishing
of sufficient security or on payment of applicable tax, interest and
penalty.Photocopies of the documents can be taken by the person from
whose custody documents are seized;
● • For seized goods, if a notice is not issued within six months of its seizure,
goods shall be returned to the person from whose possession it was seized
Period of six months can be extended on justified grounds up to a maximum
period of six months by a proper officer i.e. Principal Commissioner
/Commissioner.
Organization and Process of Search
and Seizure Operations :
On the basis of results of inspection or any other reason, Joint Commissioner of
SGST/CGST or a superior officer can order for a search if he has “reasons to
believe” –
● There are goods which are liable for confiscation
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● Any documents or books or other things which will be useful during
proceedings and are hidden somewhere
He can, on his own or through an authorized officer, search and seize the goods and
documents.
Search :
‘Search’ involves an attempt to find something. Search, in tax/legal parlance, is an
action of a government official (a tax officer or a police officer, depending on the
case) to go and look through or examine carefully a place, person, object etc. in
order to find something concealed or to discover evidence of a crime. The search
can only be done under the proper and valid authority of law.
Inspection under GST
A Joint Commissioner (or an officer of higher rank) may have “reasons to believe”
that in order to evade tax, any person has done the following
1. Suppressed any transaction of supply
2. Suppressed stock in hand
3. Claimed input tax credit in excess
4. Violated of any of the provisions
5. Any transporter or owner/operator of a warehouse has kept goods which have
escaped tax payment or has kept accounts and/or goods in such a way as to
evade tax
—Then he can authorize any officer in FORM GST INS01 to inspect places of
businesses of:
● the taxable person or
● the transporter or
● owner/operator of warehouse
He can also examine any other place if he sees fit .
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‘reasons to believe’:
‘Reason to believe’ means having knowledge of facts (although does not mean
having direct knowledge), that would make any reasonable person, knowing the
same facts, to reasonably conclude the same thing.
As per the Indian Penal Code, 1860, “A person is said to have ‘reason to believe’ a
thing, if he has sufficient cause to believe that thing but not otherwise.”
Reason to believe is a determination based on intelligent examination and
evaluation. It is different from a purely subjective consideration, i.e., an opinion. It is
based on facts rather than an interpretation of facts.
Is it necessary to record the ‘reasons to believe’ in writing, before issuing order for
Inspection/Search/Seizure?
GST Act does not mention recording the reasons to believe. In fact, Finance Act
2017 has amended Sec 132(1) & (1A) of Income Tax Act retrospectively stating, that
reason to believe, shall not be disclosed to any person or any authority or the
Appellate Tribunal.
Provisions of Code of Criminal Procedure 1973 (2 of 1974) relating to search and seizure
shall apply one important modification relates to subsection (5) of section 165 of Code of
Criminal Procedure – instead of sending copies of any record made in course of search to
the nearest Magistrate empowered to take cognizance of the offence, it has to be sent to the
Commissioner of CGST/ Commissioner of SGST . [Section 67(10)].
Seizure under GST
What is meant by seizure?
The term ‘seizure’ has not been specifically defined in GST. In legal parlance, seizure
is the act of taking over something or someone by force through legal process, such
as the seizure of evidence found at the scene of a crime. It generally implies taking
possession forcibly against the wishes of the owner.
What is the difference between Seizure and Detention?
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Not allowing the owner any access to the seized goods by a legal order/notice is
called detention. However, the ownership & possession of goods still lie with the
owner. It is issued when it is suspected that the goods are liable to confiscation.
Seizure is taking over or actual possession of the goods by the department. But the
ownership is still with the owner. Seizure can be made only after inquiry/investigation
that the goods are liable to confiscation.
Procedure for seizure
The proper officer will give an order of seizure in FORM GST INS02.
What are the powers of the officer authorized to search?
The officer authorized to search will have the power to seal the door of the premises.
He can also break open the door of any premises if access is denied. He can also
break open any cupboard or box in which goods, books, documents etc. are
suspected to be concealed.
What happens if it is not possible to seize the goods?
If it is not practicable to seize the goods, the proper officer will order the owner not to
remove these goods without prior permission of the officer. The officer will issue an
order of prohibition in FORM GST INS03.
How long will the books/documents remain with the
officer?
The officer will keep the books and documents as long as it is necessary for
examination and inquiry. Other books which are not relevant to the issue of notice
will be returned within 30 days from the date of notice.
The seized goods can be released on a provisional basis against a bond for the
value of the goods in FORM GST INS04. The owner must also furnish a security in
the form of a bank guarantee for the amount due (applicable tax, interest and penalty
payable).
If the owner fails to produce the provisionally released goods at the appointed date
and place then the security will be encashed and adjusted against the amount due.
What happens after seizure?
1. The person, whose documents are seized, can make copies only in the
presence of an officer.
2. If notice is not issued within six months (extendable by 6 more months) of the
seizing the goods, they will be returned.
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3. The Government can issue a list of hazardous or perishable goods which can
be disposed off as soon as they are seized.
4. All goods seized will be listed properly by the officer.
Does the Code of Criminal Procedure apply in such cases?
The provisions of the Code of Criminal Procedure will apply to search and seizure.
Other ways to check/inspect
The Commissioner or an authorized officer can purchase any goods and/or services
from a taxable person. This will be done to check the issue of tax invoices, whether
they are maintained correctly, and whether GST amount is clearly displayed. When
the goods are returned, the amount will have to be refunded by the taxable person
and the sales invoice will be canceled.
Search and Seizure under GST
Search and seizure is a more stringent procedure when compared to an inspection. A search
and seizure operation must be authorised by an officer not below the rank of Joint
Commissioner. Further, the Joint Commissioner can authorise a search and seizure only if
he/she has reasons to believe the person being searched has goods liable to confiscation or
any documents/ books/record/things, which may be useful for or relevant to any
proceedings.
All search and seizure operation under GST must be conducted in accordance with the
provisions of Criminal Procedure Code, 1973 which requires the presence of two or more
independent witnesses and a record of entire proceedings.
During the search and seizure operation, any or all goods, documents, books, records or
other things which would have value to the proceedings can be searched or seized. If it is
not practical to seize a goods or object, then the goods or object can be detained. During the
proceedings, the person being searched is allowed to take copies/extracts of seized records.
Finally, an inventory of the seized goods and documents must be prepared by the Officer
and provided to the person from whom the goods or documents were seized.
All documents or objects taken during a search and seizure operation must be returned
unless it is required for examination/enquiry/proceedings. If the document or object is not
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required, then it should be returned within 30 days from the issuance of show cause notice.
Also, seized goods can be provisionally released by GST Officers on execution of bond and
furnishing a security or on payment of applicable tax, interest and penalty. If no notice is
issued within a period of six months then all such goods are to be returned to the owner of
the goods or documents. In some cases, the period of six months can be extended by
Commissioner for another six months on sufficient cause.
Arrests under GST
GST rules and regulations do provide for the harshest punishment of arrest in some
exceptional cases. An arrest can be made under GST if a person has committed
specified offences (not any offence) and the tax amount is exceeding Rs.200 lakhs.
For an arrest to be made, an authorisation from the Commissioner is required.
Even though a person can be arrested for specified offences involving tax amount
exceeding Rs. 200 lakhs, if the tax involved is less than Rs. 500 lakhs, the offences
are classified as noncognizable and bailable. In such cases, the arrested persons
can be released on Bail by Deputy/ assistant Commissioner. But in case of arrests
for specified offences where the tax amount involved is more than Rs. 500 lakhs, the
offence is classified as cognizable and nonbailable and in such cases the bail can
be considered only by a Judicial Magistrate.
OFFENCES WHERE ARREST ALLOWED
• (a) supplies any goods or services or both without issue of any invoice, in violation
of the provisions of this Act or the rules made thereunder, with the intention to evade
tax; • (b) issues any invoice or bill without supply of goods or services or both in
violation of the provisions of this Act, or the rules made thereunder leading to
wrongful availment or utilisation of input tax credit or refund of tax;
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(c) avails input tax credit using such invoice or bill referred to in clause (b); • (d)
collects any amount as tax but fails to pay the same to the Government beyond a
period of three months from the date on which such payment becomes due; [Section
132(1) a to d].
OFFENCES WHERE ARREST NOT ALLOWED
• (e) evades tax, fraudulently avails input tax credit or fraudulently obtains refund
and where such offence is not covered under clauses (a) to (d);
• (f) falsifies or substitutes financial records or produces fake accounts or documents
or furnishes any false information with an intention to evade payment of tax due
under this Act;
(g) obstructs or prevents any officer in the discharge of his duties under this Act; •
(h) acquires possession of, or in any way concerns himself in transporting,
removing, depositing, keeping, concealing, supplying, or purchasing or in any other
manner deals with, any goods which he knows or has reasons to believe are liable to
confiscation under this Act or the rules made thereunder;
(i) receives or is in any way concerned with the supply of, or in any other manner
deals with any supply of services which he knows or has reasons to believe are in
contravention of any provisions of this Act or the rules made thereunder; • (j) tampers
with or destroys any material evidence or documents;
(k) fails to supply any information which he is required to supply under this Act or the
rules made thereunder or (unless with a reasonable belief, the burden of proving
which shall be upon him, that the information supplied by him is true) supplies false
information; or
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• (l) attempts to commit, or abets the commission of any of the offences mentioned in
clauses (a) to (k) of this section,
GUIDELINES:
• Certain basic guidelines to be observed during search: – No search of premises
should be carried out without a valid search warrant issued by the proper officer. –
There should invariably be a lady officer accompanying the search team to a
residence.
– The officers before starting the search should disclose their identity by showing
their identity cards to the person incharge of the premises.
The search warrant should be executed before the start of the search by showing the
same to the person incharge of the premises and his signature should be taken on
the body of the search warrant in token of having seen the same. The signatures of
at least two witnesses should also be taken on the body of the search warrant.
– The search should be made in the presence of at least two independent witnesses
of the locality. If no such inhabitants are available /willing, the inhabitants of any other
locality should be asked to be witness to the search. The witnesses should be
briefed about the purpose of the search.
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Section 68 Inspection of goods in
movement
• The Central or a State Government may require the person in charge of a
conveyance carrying any consignment of goods of value exceeding a specified
amount to carry with him such documents as may be prescribed and also to carry
with him such devices in such manner as may be prescribed in this behalf.
• Where any conveyance referred to in subsection (1) is intercepted by the proper
officer (Inspector) at any place, he may require the person in charge of the said
conveyance to produce the aforesaid documents and devices for verification, and the
said person shall be liable to produce the documents and devices and also allow
inspection of goods.
• Central Government vide Notification no.27/2017 Central Tax dt. 30.08.2017 under
Rule 138 of the CGST Rules, 2017 has made Eway Bill Provisions:
• Every registered person who causes movement of goods of consignment value
exceeding fifty thousand rupees In relation to supply; or For reasons other than
supply; sales returns; stock transfer; movement for job work etc. Or; due to inward
supply from unregistered person shall, before commencement of movement, furnish
information relating to the said goods in Part A of FORM GST EWB01,
electronically, on the common portal.
• EWay bill is optional when value of consignment is less than Rs. 50,000/ Validity
of EWay bill is upto 100 km – one day For every additional 100 km or part one
additional day
• Documents to be carried with EWay Bill:
• Invoice or bill of supply or delivery challan, as the case may be Or Invoice
reference number generated on portal
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• A copy of the eway bill or the eway bill number, either physically or mapped to a
Radio Frequency Identification Device (RFID) embedded on to the conveyance in
such manner as may be notified by the Commissioner.
Section 71 Access to business
premises :
• This provision allows an audit party or a cost accountant or chartered accountant
nominated under section 66 of CGST/SGST Act, access to any business premises
without issuance of a search warrant
• Access is for the purposes of carrying out any audit, scrutiny, verification and
checks as may be necessary to safeguard the interest of revenue
• A written authorisation is still to be issued by an officer not below the rank of Joint
Commissioner of CGST or SGST
• 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.
Upon demand by the proper officer or audit party or cost accountant or chartered
accountant so authorised, the person incharge of premises will have to produce the
records maintained by a registered taxable person at the said premises for his
scrutiny within a reasonable time.
• However, records must be produced within fifteen working days of making the
demand or such further extended period that may be allowed by the person who
made the request for the documents.
The following documents listed in the section must be produced:
i. the records as prepared or maintained by the registered taxable person and
declared to the CGST/SGST officer as may be prescribed;
ii. trial balance or its equivalent;
iii. Statements of annual financial accounts, duly audited, wherever required;
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iv. cost audit report, if any, under section 148 of the Companies Act, 2013; v. the
incometax audit report, if any, under section 44AB of the Incometax Act, 1961. vi.
any other relevant record.
Officers required to assist
CGST/SGST officers
• Officers of following Departments have been legally required to assist Central tax
officers in the implementation of this Act:
i. Police
ii. Railways
iii. Customs
iv. Officers of state/ central government engaged in collection of land revenue;
v. All village officers;
vi. Officers of State tax and UT tax
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Conclusion:
The code laid down in the Income Tax Act for search and seizure
confers vast and Draconian Powers to the authorities. However, the
powers have been judicially approved and held to be
constitutionally valid on grounds of flagrant tax evasion and huge
flow of unaccounted money in the system. While these are valid
points one cannot equally deny the fact that these activities of
search and seizure are infringement on persons liberty, that being
so it desirable that such powers be sparingly used and when used
every possible regulation adhered to.
Certain lacuna in the Income Tax Act have been pointed out such
as non specification of time limit for issue of notice under section
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158 BD and lack of specific provisions for assessment of search
cases in the Wealth Tax Act. Government may consider introducing
a time limit under section 158 BD for issuing notices and
appropriate provisions in the Wealth Tax Act for assessment of
search cases.
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