Page 64 - GSTL_ 28th May 2020_Vol 36_Part 4

510 GST LAW TIMES [ Vol. 36
8.2 Reference was made to the decision of the Supreme Court in the
case of Income Tax Officer v. Seth Brothers, (1969) 74 ITR 836 (SC), wherein the
court, in the context of Section 132 of the Income Tax Act, 1961, has held that
since by the exercise of such power, a serious invasion is made upon the rights,
privacy and freedom of the taxpayer, the power must be exercised strictly in ac-
cordance with law and only for the purposes for which the law authorises it to be
exercised.
8.3 Reliance was placed upon the decision of the Allahabad High Court
in the case of Dr. Nand Lal Tahiliani v. Commissioner of Income-tax, (1988) 170 ITR
592 (Allahabad) , wherein the court has held that the dwelling house of a person
is a high fortress. Every householder, the good and the bad, the guilty and the
innocent, is entitled to the protection designed to secure the common interest
against unlawful invasion of the house. Ransacking of the house and the act of
taking away the property is an inroad on citizens’ right of privacy, one of the
values of civilization. Any unwarranted intrusion of it cannot be countenanced.
Reasonable belief exists if the information is not only trustworthy, but reasonable
and sufficient in itself to warrant the conclusion that the provisions of Section 132
were being violated. Because if the exercise of power is bad or unlawful from its
inception, then it is not validated or changes character from its success. It would
not, therefore, be asking too much from the authorities to comply with the basic
requirements of the section before they are permitted to invade the secrecy of
one’s home.
8.4 The attention of the court was invited to the provisions of Section
132 of the Income Tax Act, 1961, to point out that clause (iia) of sub-section (1)
thereof specifically permits search of any person who has got out of, or is about
to get into, or is in the building or place, if the authorised person has reason to
suspect that such person has secreted about his person any such books of ac-
count, documents, money, bullion, jewellery or other valuable article or thing, to
submit that there are no similar provisions in the GST Acts, which permit search
of a person. Reference was made to clause (iib) of sub-section (1) of Section 132 of
the Income Tax Act, 1961, which provides that the authorised officer may require
any person who is found to be in possession or control of any books of account
or other documents maintained in the form of electronic record, as defined in
clause (f) of sub-section (1) of Section 2 of the Information Technology Act, 2000,
to afford the authorised officer the necessary facility to inspect such books of ac-
counts or other documents, to submit that there are no similar provisions under
the GST Acts.
8.5 The Learned Amicus Curiae submitted that Section 67 of the GST
Acts, per se, does not empower the authorised officer to record the statement of
any person, including the person in whose name the authorisation has been is-
sued. It was submitted that rule 139 of the Central Goods and Services Tax Rules,
2017 (hereinafter referred to as “the CGST Rules”) and the authorisation for in-
spection or search in FORM GST INS-1, do not confer any such power on the au-
thorised officer under sub-section (2) of Section 67 of the GST Acts.
8.6 Next, it was submitted that the family members of the dealer or
person, whose premises are searched, cannot be touched during the course of
search. It was contended that the provisions of sub-section (2) of Section 67 of the
GST Acts deal only with goods, documents, books or things and do not confer
any power on the authorised officer to touch any other person present at the
searched premises, leave alone, take his phone and copy it or use it.
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