Lawyer-Client Privileged Communication; GST Dept. Can’t Issue Notice To Lawyer : Calcutta High Court

The Calcutta High Court has held that the GST department cannot issue notice to the advocate appearing on behalf of the assessee.

The bench of Chief Justice T. S. Sivagnanam and Justice Hiranmay Bhattacharyya has observed that Sections 126 and 129 of the Evidence Act protect communications between a lawyer and a client made during the lawyer's employment. It is a settled legal position that a communication is privileged if it is made to a legal advisor by a client after the commission of a crime and with a view to his defence, but it is not privileged if it is made before the commission of the crime or wrong and for the purpose of being guided or assisted in furthering or committing it.

The applicant is a practising advocate and a third party to the writ proceedings. The applicant says that the order that is sought to be impugned by him seriously affects him.

The department objected to the maintainability of the appeal at the instance of a third party. The department submitted that pursuant to the directions issued in the writ petition, which were interim in nature, the authorities conducted an investigation, and several fake companies that have illegally committed GST fraud have been unearthed, and criminal and other proceedings have been initiated.

The court noted that the appeal is maintainable for the reason that soon after the impugned order was passed by the learned Single Bench, the Anti-Fraud Department of the Kolkata Police as well as the GST Department issued a series of notices to all the advocates who are regularly appearing for their clients in cases pertaining to the GST/WBVAT/WBST Acts and other related enactments. When the matter was brought to the attention of the Court, the authorities of the respondent were well advised that they had no jurisdiction to issue notices to the advocates calling for information regarding their clients as the information given by the clients is a privileged communication given to an advocate.

The court held that Section 126 of the Evidence Act is designed to abort the attempt to intrude on the privacy of the close preserve of the fund of information conveyed by the client in confidence. Section 126 of the Evidence Act prohibits an attorney from disclosing an attorney-client communication without the express consent of the client.

Case Title: Himangshu Kumar Ray Versus State Of West Bengal

Case No.: MAT/1054/2023

Date: 14.06.2023

Counsel For Petitioner: Vinay Kr. Shraff

Counsel For Respondent: Md. T.M. Siddiqui

Click Here To Read The Order