Page 55 - GSTL_ 28th May 2020_Vol 36_Part 4

2020 ] PARESH NATHALAL CHAUHAN v. STATE OF GUJARAT 501
thority of law. One shudders to think of the plight of one’s own grown up unmarried
daughter if she were in the place of the petitioner’s daughter. But unfortunately, the re-
spondents have no regrets! All that is stated is that longer stay at the residential premise
of the taxpayer is not desirable and requires to be avoided as far as possible. [paras 18, 19,
20, 21, 23, 25, 26, 28]
GST - Section 157(2) of Central Goods and Services Tax Act, 2017 -
Scope of - It does not protect action of revenue officers not contemplated un-
der statutory provision and which infringes fundamental rights of citizens un-
der Article 21 of Constitution of India - Action taken in good faith by empow-
ered officer may exceeds scope of his authority - On facts, held authorisation
for search and seizure of goods converted to search for person that was not
backed by any statutory provision, held not to be in good faith - Protection of
such action under Section 157 of Central Goods and Services Tax Act, 2017 can
unleash terror on taxable persons. [para 28]
Strictures against revenue officers - Enforcing penalty provisions -
They should be well versed with statutory provisions and scope/limits of their
power - They cannot plead ignorance of law to justify their illegal actions -
They cannot act on the basis of presumptions or past precedents under previ-
ous enactment - Higher officer are expected to reprimand subordinate officers
for their unauthorised actions and not try to shield them. - Thus, the stand of the
Chief Commissioner in the above report is that in view of past precedent under the Guja-
rat Value Added Tax Act, 2003, the officers under the GST Acts have recorded state-
ments of the family members of the petitioner. On a perusal of the contents of the report it
appears that according to the Chief Commissioner under the GVAT Act, statements of
persons present at the search premises were being recorded. The Chief Commissioner has
placed reliance upon the provisions of Section 88 of Gujarat Value Added Tax Act, 2003
which relates to authorisation to investigate; overlooking the fact that in the present case
the authorisation was for search and seizure and not investigation inasmuch as recording
of statements under Section 161 of the Code finds place in Chapter XII thereof which per-
tains to “Information to the police and their powers to investigate” and not under the
provisions of the Code relating to search and seizure. Be that as it may. At best, giving
benefit of doubt to the concerned officers, such defence may be accepted, namely that they
were under the impression that statements of family members could be recorded during
the course of search. That however, does not justify the stay at the residential premises of
the petitioner for eight days, despite the fact that the search for documents, books and
things was over on the very first day. It is a matter of deep regret that the Chief Commis-
sioner of State Tax has attempted to justify such wrongful action on the part of the offic-
ers of the department by placing reliance upon the provisions relating to power of inves-
tigation under an earlier enactment to justify the actions of the concerned officers who
were exercising powers of search and seizure under Section 67(2) of the GST Acts. One
would expect the higher officer to reprimand the subordinate officers for their unauthor-
ised actions. But in this case, the higher ups, for reasons best known to them are trying to
shield the actions of the subordinate officers though they are not in a position to show the
relevant provisions of law under which such officers were empowered to act in this man-
ner. All that the Court can say at this stage is that the reports submitted of the Chief
Commissioner in response to the orders dated 25-10-2019 and 20-11-2019, do not meet
with the standards expected from an authority of his stature. [paras 22, 25, 27]
Case adjourned
CASES CITED
District Registrar and Collector v. Canara Bank — 2005 (1) SCC 496 — Referred ........................... [Para 8]
GST LAW TIMES  28th May 2020  55