Page 65 - GSTL_ 28th May 2020_Vol 36_Part 4

2020 ] PARESH NATHALAL CHAUHAN v. STATE OF GUJARAT 511
8.7 Emphasis was laid on sub-section (4) of Section 132 of the Income
Tax Act, 1961, to submit that the same empowers the authorised officer to exam-
ine on oath any person who is found to be in possession or control of any books
of accounts; whereas no such power is conferred on the authorised officer under
Section 67 of the GST Acts. It was submitted that under sub-section (2) of Section
67 of the GST Acts, the authorised officer does not have any power to record
statement/s of the person/s residing in the premises inasmuch as this is not an
inquiry or investigation, but a search. Therefore, the family members cannot be
questioned about anything.
8.8 It was further submitted that sub-section (2) of Section 67 of the
GST Acts speaks of goods liable to confiscation and documents or books or
things. The expression “books” is not defined in the GST Acts, but finds place in
sub-section (12A) of Section 2 of the Income Tax Act, 1961 which says that “books
or books of account” includes ledgers, day-books, cash books, account- books
and other books, whether kept in the written form or as print-outs of data stored
in a floppy, disc, tape or any other form of electromagnetic data storage device. It
was submitted that, therefore, the expression “goods, documents or things”, does
not contemplate live things or human beings and hence, the power of search is
restricted to four things, viz. goods liable to confiscation, documents, books or
things and that none of the fiscal statutes even remotely contemplate search for a
human being.
8.9 It was submitted that unless specifically so authorised by the statute
and the authorisation, no power is conferred on the search party to search a per-
son. It was submitted that Section 70 of the GST Acts empowers the proper of-
ficer to summon any person whose attendance he considers necessary either to
give evidence or to produce a document or thing in any inquiry in the same
manner, as provided in the case of a civil court under the provisions of the Code
of Civil Procedure, 1908. For issuing summons, proper procedure must be fol-
lowed by the Department. Thus, in the absence of any summons being issued
under Section 70 of the GST Acts, no statement can be recorded under Section 67
of the GST Acts.
8.10 The attention of the court was invited to the provisions of Order V
of the Code of Civil Procedure, which provides for issue and service of summons
as well as to the provisions of Order XVI of the Code of Civil Procedure, which
provides for summoning and attendance of witnesses, to submit that the same
contemplate reasonable time being provided to a person to whom a summons is
issued and hence, Section 70 of the GST Acts cannot be read with sub-section (2)
of Section 67 thereof and that both the powers cannot be exercised concurrently.
8.11 It was pointed out that Section 144 of the GST Acts, which makes
provision for presumption as to documents in certain cases, is in pari materia with
sub-section (4A) of Section 132 of the Income Tax Act, 1961. It was submitted that
accordingly, in the absence of any specific provision empowering the authorized
officer to record statements and carry out investigation, no powers can be con-
ferred on a presumptive basis. It was submitted that the family members of the
supplier/dealer are out of the purview of sub-section (2) of Section 67 of the GST
Acts, which includes their mobile phones also.
8.12 Reference was made to sub-rule (4) of Rule 112 of the Income Tax
Rules, 1962, which provides that if ingress into such building or place cannot be
so obtained, it shall be lawful for the authorized officer executing the authority,
with such assistance of police officers or of officers of the Central Government or
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