Akin To Power To Issue & Serve Summons Under Order V CPC: Rajasthan High Court Upholds Constitutionality Of S.70 Rajasthan GST Act 2017
The Rajasthan High Court has dismissed a plea challenging the vires of Section 70 of Rajasthan GST Act, 2017 which provides for Power to summon persons to give evidence and produce documents. Section 70 reads thus:"Power to summon persons to give evidence and produce documents.- (1) The proper officer under this Act shall have power to summon any person whose attendance he...
The Rajasthan High Court has dismissed a plea challenging the vires of Section 70 of Rajasthan GST Act, 2017 which provides for Power to summon persons to give evidence and produce documents.
Section 70 reads thus:
"Power to summon persons to give evidence and produce documents.-
(1) The proper officer under this Act shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other 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.
(2) Every such inquiry referred to in subsection (1) shall be deemed to be a "judicial proceedings" within the meaning of section 193 and section 228 of the Indian Penal Code (Central Act No. 45 of 1860)."
After perusing the provision, the division bench of Chief Justice Akil Kureshi and Justice Sameer Jain ruled,
"The provision thus while empowering the proper officer to summon a person to give evidence or to produce documents, controls such exercise of powers by providing that the summons may be issued where a proper officer considers it necessary that such person is required to give evidence or to produce certain documents. These powers are not thus unguided or uncanalised."
The court recalled that Section 14C of the Central Excise Act and Section 108 of the Customs Act contain similar provisions authorizing the appropriate officer with the power to summon attendance of a witness for recording statement or for production of documents.
It further added that such powers are to be exercised in the same manner as would be exercisable by a civil court under the Code of Civil Procedure. Order 5 of Code of Civil Procedure pertains to issue and service of summons under the C.P.C.
It thus held,
"This order makes detailed provisions for issuance and service of summons. The powers under sub-Section (1) of Section 70 thus would be exercisable in the manner provided therein. In order to ensure that the information that a person so summoned provides, carries a certain sanctity, Sub-section (2) of Section 70 provides that every such enquiry under sub-Section (1) would be deemed to be judicial proceeding within the meaning of Section 193 and 228 of IPC. We do not find such powers are in any manner beyond the competence of legislature or opposed to any of the fundamental rights or other provisions of the Constitution of India."
In the present plea, the petitioner has also challenged the summons issued by respondents in the exercise of powers under Section 70 of the Act.
It was submitted that summons was issued without indicating the nature of enquiry being conducted against the petitioner, without giving details of enquiry pending against the petitioner and giving unreasonably short time of merely 12 hours to appear before him in city different from where the petitioner resides.
"If the summons in a particular case grants unreasonably short time which in any case is impossible for the noticee to comply with, it is always open for the aggrieved person to seek extension from the authority or to take a shelter of the court proceedings. However only on this ground we are not inclined to interfere since summons was issued way back on 16.12.2021 and would have worked itself out," the Court said.
The counsel for the petitioner contended that under powers Section 70 are vested in the State authority to issue summons and require the attendance of a person in relation to the enquiry in which the person issuing the summons is himself interested. Such powers can be exercised like the civil court under the Code of Civil Procedure.
The court rejected the petitioner's reliance on Madras Bar Association Vs. Union of India [(2010) 11 SCC 1], by which he contended that Section 70 is in violation of the principle of separation of powers.
The court observed that Madras Bar Association has no relevance in the instant case. The court opined that it was the case in which in the context of constitution of various tribunals, and whereby the Supreme Court has discussed at length the various principles governing the independence of judiciary and requirement of ensuring that such tribunals function independently.
Adv. Prakhar Gupta appeared on behalf of the petitioner.
Case Title: M/s S.k. Metal v. Assistant Commissioner, B II Enforcement Wing II, Department Of Commercial Taxes
Case No: D.B. Civil Writ Petition No. 466/2022
Citation: 2022 LiveLaw (Raj) 38
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