April 16, 2024

CBIC issued guidelines to be followed by CGST field officers while investigating to maintain ease of business

Investigations, summon, letters from GST Authority has become common in business from last sometime and there are many practical issues which comes alongwith these communication. GST investigations are at many times hampering regular business activities as well. Further, there are many practical issues being faced by the GST Authorities as well as taxpayer such as prior approval, simultaanoues investigation by more than one GST authority, uncessary information asked etc.

Considering the challenges faced by the industry during investigation proceedings, the Board has issued following guidelines which are to be followed in the CGST Zones while conducting any investigation to ensure ease of business operations, subject to legal provisions or instructions issued on this behalf:

1. Approvals for initiating investigation

According to jurisdictions assigned, The Principal Commissioner shall be responsible for developing and approving intelligence, conducting search, and completing investigation including subsequent action.

Any information or intelligence which is collected during the course of investigation, pertaining to another CGST field formation, shall be forwarded concerned CGST field formation or DGGI, as the case may be.

Investigation must be initiated only after obtaining prior approval of the (Pr.) Commissioner.

However, in following cases prior written approval is required from Zonal (Pr.) Chief Commissioner if investigation is to be initiated:
- matters of interpretation seeking to levy tax/ duty on any sector/ commodity/ service for the first time, whether in Central Excise or GST; or
- big industrial house and major multinational corporations; o
- sensitive matters or matters with national implications; or
- matters which are already before the GST Council.

In above mentioned cases, the concerned CGST field formation should also collect information about prevalent trade practices and nature of transactions carried out to analyze adequate justification for initiating investigation and taking action.

Field formations must ascertain whether any inquiry is already initiated on the same subject matter with respect to the same taxpayer by another investigating office or tax administration. The position must be placed before the authority who is to approve initiation of investigation.

2. Possible issues involved in Investigation

Investigations initiated by DGGI or State GST Authority:
1. There can be cases where record based investigation is already initiated against the taxpayer by the DGGI or the State GST department simultaneously.
2. The (Pr.) Commissioner must communicate with the other investigating office(s) to consider the feasibility of only one of the offices pursuing all these subject matters with respect to the taxpayer, and the other offices consolidating their material with that office. If this outcome is not feasible, the reasons therefor should be confirmed on file by such (Pr.) Commissioner.

Investigation with respect to other GSTIN of same PAN
1. There may be the case when during the course of investigation, the (Pr.) Commissioner is of the opinion that the issue is relevant to some or all other GSTIN of such taxpayers (Same PAN). Further, matter also falls under the charter of DGGI and DGGI avoids taking up (as the same is more appropriate for return scrutiny or audit etc), then the (Pr.) Commissioner refer the matter to zonal (Pr.) Chief Commissioner. He shall in turn request the Pr. DG, DGGI to take up the matter in accordance with DGGI guidelines.

However, in the above mentioned case if the matter does not fall under the Charter of the DGGI then the (Pr.) Commissioner shall take either of the following 2 actions with the approval of zonal (Pr.) Chief Commissioner within 30 days of initiation of investigation:
1. If description of GSTINs or similar entity types involved (or likely to be involved) across various jurisdictions is available, the self-contained reference be shared with each concerned Zone or all the Zones.
2. In other situations, Pr. DG DGGI shall be requested to issue suitable alert.

Issue related to interpretation of law
1. In certain cases, issue involved under investigation may be based on interpretation of GST Law and it is causing non-payment or short payment of tax. However, the taxpayer(s) are following such a prevalent trade practice based on that issue in the sector/industry.
2. In such a case, zonal (Pr.) Chief Commissioner shall make a self-contained reference to the relevant policy wing of the Board i.e. the GST Policy or TRU. Such reference should be made before concluding investigation, and as much in advance, so it may be useful in promoting uniformity or avoiding litigation if the matter, after being processed, is amongst those that also gets placed before the GST Council.

Investigation with respect to Listed Entities or PSU or Govt. Department
1. If investigation is to be initiated against a listed company or PSU or Govt Dept./agency or an Authority established by law or information to be obtained from them, then the CGST Field formations should first address an official letters to the designated authority of such entity instead of issuing summon.
2. Such letter shall contain the details of reasons for investigation, and the legal provisions therefor and shall request for submission of the relevant specified details in a reasonable time period.

Reference to original case or enquiry
1. Where letter seeks information or documents from regular taxpayer, the reference can given to inquiry “with respect to” or “in connection with” that entity. Further, the letter or summons should disclose the specific nature of the inquiry. The vague or general expressions such as that the officer is making inquiry in connection with “GST enquiry” or “evasion of GST” or “GST evasion” etc. must not be mentioned.

Scope of summon (information that can be asked through summon)
1. Information already available on GST portal should not be called for under letter or summons. Further, a letter or summons should not be used as a means to seek information filled in formats or proforma.
2. The summon issued must not be beyond the scope of summon given under section 70 of CGST Act, 2017. Addressing letter/summons with context or content akin to a fishing inquiry is not acceptable.
3. If a taxpayer has utilized ITC towards payment of GST on its outward supplies, then CGST officer shall not issue the summon or ltter mentioning – ‘please clarify whether ITC availed and utilized was proper.”
4. Before summoning any information or documents, the relevancy and propriety of what is being sought must be recorded (on e-file), ensuring that it is holistic and result of preparation, and also so as not to have repeated issuance of summons or seeking piecemeal information.

Prior approval before issuing summon
1. In issuing summons, the norm shall be of prior reasoned approval (of officer not below Dy/Asst. Commissioner level) of the content of the summons to be printed by the summoning officer, including in terms of what is being sought and the time frame to be provided being reasonable for its compliance.
2. Where, for strictly operational reasons, it is not possible to obtain such prior permission, the approval by such an officer can be verbal, however this all must be confirmed in writing at the earliest opportunity.

E-file of Investigation
1. Officer is required to maintain an e-office file which shall contain all information and documents related to investigation such as:
  - Scanned copy of a statement (recorded under summons)
  - Approval, which was obtained to issue summons.
  - Outcome of search/inspection conducted, including panchnama.

The e-file should be submitted for information to Addl./Jt. Commissioner in not more than 4 working days from date of statement, completion of search/inspection.

Time limit of conclusion of Investigation
- An investigation must be conculed at the earliest which is not more than 1 year.
- Show cause notice should not be delayed after conclusion of investigation.
- The closure report, after payment of government dues by concerned person, should not be delayed and should have a brief self-explanatory narration of the issue and the period involved.
- Conclusion of investigation may also take the form of recording that investigation is not being pursued further as nothing objectionable was found in terms of matter investigated

3. Grievance redressal

The (Pr.) Commissioner is to be proactive so that complaints can be prevented in respect of the investigation and related work.

The Addl./Jt. Commissioner in-charge of investigation is the Grievance Officer whom taxpayers may approach (through letter, email or by appointment) with grievance. In case of reasonable grievance persists, the (Pr.) Commissioner may consider meeting, by appointment, the taxpayer.

DISCLAIMER: The views expressed are strictly of the author and VJM & Associates LLP. The contents of this article are solely for informational purpose. It does not constitute professional advice or recommendation of firm. Neither the author nor firm and its affiliates accepts any liabilities for any loss or damage of any kind arising out of any information in this article nor for any actions taken in reliance thereon.

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