The Central Board of indirect taxes and Customs has issued an instruction no. 03/2022-23 (GST-Investigation) dated 17.08.22, laying down the guidelines to be followed for the purpose of issue of summons under section 70 of the CGST act. The guidelines are summarised as under:
1) The issue of summons is one of the instruments available with the department to obtain information or documents or statement from any person to find out the extent of evasion of tax etc. The exercise of the power has to be done judiciously and with due consideration. The offices are advised to explore instances when instead of resorting to summons, a letter for requisition of information may suffice.
2) The power to issue summons are generally exercised by Superintendents. The summons by such officers should be issued after obtaining prior written permission from an officer not below the rank of the Deputy Commissioner or Assistant Commissioner with the reasons for issuance of summons to be recorded in writing.
3) If it is not possible open prior written permission, oral or telephonic, permission from the officers must be obtained by the Superintendent and the same should be reduced to writing and intimated to the officer who had granted the permission at the earliest opportunity.
4) If summons are issued, the officer issuing the summons should record in the file about the appearance/ non-appearance of the summoned person and place a copy of the statement recorded in the file.
5) the summons should normally indicate the name of the offender against whom the case is being investigated unless revelation of the name of the offender is detrimental to the cause of the investigation, so that the recipient of the summons has a prima facie understanding as to whether he has been summoned as an accused or co accused or as a witness.
6) The issue of summons can be avoided to call upon statutory documents which are available in the GST portal.
7) The senior management officials of any company or a public sector undertaking should not generally be issued summons in the first instance. They can be summoned when there are clear indications in the investigation of their involvement in the decision making process which lead to loss of revenue.
8) Generation and quoting of Document Identification Number is mandatory on communication issued by the officers of the board to taxpayers and other concerned persons for the purpose of Investigation.
9) The summoning officer must be present at the time and date for which summons is issued. In case of any exigency, the summoned person must be informed in advance in writing or orally.
10) Issuance of repeated summons without ensuring service of the summons must be avoided. If the summoned person does not appear even after being repeatedly summoned, a complaint should be filed with the Jurisdictional Magistrate alleging that the accused had committed offence under sections 172 of the Indian Penal Code (absconding to avoid service of summons or other proceedings) and/ or 174 of the Indian Penal Code (non-attendance in obedience to when order from public servant), since enquiry under section 70 of the CGST act has been deemed to be " a judicial proceedings" within the meaning of Section 193 and section 228 of the Indian Penal Code.
11) Before filing the complaints, it must be ensured that the summons had been adequately served upon the intended person in accordance with section 169 of the CGST act.
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