September 5, 2022

Guidelines for issuance of summon under GST

“Summon” means an act of ordering someone to be present. Summon is an important tool for Government Officials to collect information by ensuring the presence of the person to whom summon has been issued.

Under Goods and Service Tax, Section 70 of CGST Act provides power to a proper officer to issue summons to any person to give any document or information. However, the Department has noticed that GST officials are using powers given under Section 70 very casually. GST officials are issuing summons to top senior officials of the Company in a routine manner to collect material information or documents. Also, a summons has been issued to collect information that is already available on the GST portal such as GSTR-1 and GSTR-3B.

Therefore, the GST Investigation wing has issued guidelines on the issuance of summons under Section 70 of CGST Act vide Instructions No. 03/2022-23 (GST-Investigation) dated 17th August 2022. Following are the guidelines issued:

1. Section 70-Power to summon persons to give evidence and produce documents

As per Section 70(1) of the CGST Act, a proper officer can issue summons to any person to provide any evidence or document or any other thing in an inquiry. Summon can be issued 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).
Further, as per Section 70(2), securing such documentary and oral evidence shall be considered as “judicial proceedings” within the meaning of Section 193 and Section 228 of the Indian Penal Code (45 of 1860).

2. Rationalize the use of Power

Summons is one of the instruments with the Department to obtain information or documents or statement from any person to find out the evasion of the tax etc.
However, it needs to be ensured that this power is exercised judiciously and with due consideration.
The Department has advised GST officers that they should explore other options instead of resorting to summon such as whether a letter for requisition of information may suffice.
In the pre-GST regime, the Board has sensitized the officers regarding the use of the power of issuance of summons diligently. However, considering the liberlize use of this power, Board finds it necessary to issue fresh guidelines under CGST.

3. Guidelines for issuance of summon

Board has directed that the following guidelines must be followed in matters related to an investigation under CGST:

3.1 Power to Issue Summon

Summons are generally issued by Superintendents. However, higher officers may also issue a summons.
Now, Summons should be issued by Superintendents after obtaining prior written permission from an officer not below the rank of Deputy/ Assistant Commissioner and reasons for issuance of a summons should be recorded in writing.
However, Where due to operational reasons it is not possible to obtain prior written permission then the supervenient may obtain oral/telephonic permission from an authorized officer. However, such permission should be reduced to writing and intimated to the officer at the earliest opportunity.

3.2 Manner of Issuance of Summon

In the summons, officers should normally mention the name of the offender(s) against whom the case is being investigated. Mentioning a name in summon will provide the recipient of summons a prima-facie understanding that whether he has been summoned as an accused, co-accused, or as a witness
However, the name may not be mentioned when the revelation of the name of the offender is detrimental to the cause of the investigation.
Issuance of summons may be avoided to call such documents which are digitally/ online available in the GST portal.
Also, as per Board’s Circular No. 122 /41/2019-GST dated 5th November 2019, it is mandatory to generate and quote Document Identification Number (DIN) on a summons issued by officers to taxpayers and any other persons.
Format of summons has been prescribed under Board’s Circular No. 128/47/2019-GST dated 23rd December 2019.
Senior management officials such as CMD/ MD/ CEO/ CFO/ similar officers of any company or a PSU should not generally be issued summons in the first instance. They should be summoned when there are clear indications of their involvement in the decision-making process that led to a loss of revenue.
The repetitive summons must be avoided without ensuring the service of the summons.

3.3 Proceedings of Summon

In all cases, where the summons is issued, the officer should record in the file the appearance/ non-appearance of the summoned person and place a copy of the statement recorded in the file.
The summoning officer must be present at the time and date for which the summons is issued. In case of any exigency, the summoned person must be informed in advance in writing or orally.
All persons summoned are bound to appear before the officers concerned, the only exception being women who do not appear in public due to tradition or any privileged persons. The exemption is so available to these persons under Sections 132 and 133 of CPC and may be kept in consideration while investigating the case.

3.4 Consequences of not responding to Summon

In the case where a summoned person does not join investigations even after being repeatedly summoned, generally 3 summons at the reasonable interval, a complaint should be filed against such person with the jurisdictional magistrate alleging that the accused has committed offense under:
1. Sections 172 of the Indian Penal Code (absconding to avoid service of summons or other proceedings); or
2. Section 174 of the Indian Penal Code (non-attendance in obedience to an order from a public servant)

However, Before filing such complaints, it must be ensured that the summons has adequately been served upon the intended person However, this does not bar to issue further summons to the said person under Section 70 of the Act.

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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