ARREST PROVISIONS UNDER GST (PART-1)
By: – Dr. Sanjiv Agarwal
Goods and Services Tax – GST
Dated:- 18-1-2018
The provisions relating to 'power to arrest' are contained in following sections of the CGST Act, 2017:
Sections
Relating to
69
Power to arrest
132
Prosecution
436
Manner of arrest (Code of Criminal Procedure, 1973)
Objectives of arrest provisions
In the administration of taxation the provisions for arrests are created to tackle the situations created by some unscrupulous tax evaders. To some these may appear very harsh but these are necessary for efficient tax administration and also act as a deterrent and instil a sense of discipline. The provisions for arrests under GST Law have sufficient inbuilt safeguards to ensure that these are used only under authorisation from the Commissioner. Besides this, the GST Law also stipulates that arrests can be made only in those cases where the person is involved in offences specified for the purposes of arrest an
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me facts, to reasonably conclude the same thing. As per section 26 of the IPC, 1860, “A person is said to have 'reason to believe' a thing, if he has sufficient cause to believe that thing but not otherwise.”'Reason to believe' contemplates an objective determination based on intelligent care and evaluation as distinguished from a purely subjective consideration. It has to be and must be that of an honest and reasonable person based on relevant material and circumstances.
Who can arrest
In case of CGST, the Commissioner may authorize any officer of Central Tax to arrest any person who has committed punishable offences liable for arrest. Such authorization has to be by way of a written order and only to Central Tax officers.
Offences punishable with arrest
Under section 132(1), arrest provisions are attracted where an offence has been committed which is punishable under sub-section (1) [clauses (a) to (d)] or sub-section (2) of sec 132 of the GST Act, 2017. Accordingly, following o
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in sec 132(1)(a, b, c, d) and punishable under clause (i) of sub-section (1) shall be cognizable and non- bailable.
Non-cognizable offence means relatively less serious offences in respect of which a police officer does not have the authority to make an arrest without a warrant and an investigation cannot be initiated without a court order. All offences under GST law except offences under sec 132(4) shall be non-cognizable and bailable i.e. offences involving tax upto INR 5 crore. In other words, offences which are cognizable are non-bailable and non-congnizable are bailable. To be a cognizable offence, the amount of tax evaded shall exceed INR 5 crores.
Bailable Offence
The offences from 'bail' point of view can be categorized into two types – bailable and non-bailable. While in a bailable offence, granting of bail is done in normal course whereas in case of non-bailable offence, an arrest can be effected, even for the purpose of investigation, implying that offender's detention i
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r otherwise;
(b) Release of arrested person is allowed only in case of a non-cognizable offence and bailable offence;
(c) Release can be made by the Deputy Commissioner or Assistant Commissioner of CGST/SGST;
(d) The officer has the same powers and subject to same powers as that of an officer-in-charge of police station;
(e) Provision of release is subject to provisions of Code of Criminal Procedure, 1973 (Sec 436).
Grounds of arrest
Sec 69(2), where a person is arrested for any cognizable offence, every officer authorised to arrest a person, shall inform such person, of the grounds of arrest and produce him before a magistrate within twenty four hours.
This section requires the following actions:
(a) Arrest in case of cognizable offence u/s 132(5) of the GST Act, 2017
(b) Officer to inform grounds of arrest to person being arrested (of course, before actual arrest),
(c) Produce the arrested person before the Magistrate within twenty-four hours.
(To be continued …..
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