Presence of lawyer at the time of questioning/ examination not allowed

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The Hon’ble HC, Delhi in the matter of Sudhir Kumar Aggarwal vs. Directorate General of GST Intelligence [W.P.(CRL) 2686/2019 dated November 6, 2019] modified its order dated September 20, 2019, to hold that presence of a lawyer cannot be allowed at the time of questioning or examination by the officers in an investigation against the assessee in respect of fraudulent Input Tax Credit (“ITC”) availment under the cover of fake invoices.

Facts:

Sudhir Kumar Aggarwal (“the Petitioner”) is engaged in the business of import of FMCG items and tobacco products.

The petitioner came to know that the GST Officers conducted a search on September 11, 2019, at the Petitioner’s property bearing no. J5/101E, Rajokri Garden, New Delhi which was rented out to one Mr. Jaiswal, who was residing at the said premises with his wife Mrs. Jaiswal. Mr. Jaiswal was manhandled and was in a state of trauma after having been illegally detained by the GST Officers.

The employee of the Petitioner, namely one Mr. Garg was also, illegally detained by the GST Officers and was manhandled, harassed mentally, physically and verbally by GST Officers.

Issue involved:

Whether the presence of a lawyer can be allowed at the time of examination/interrogation by GST Officers.

Held:

The Hon’ble HC, Delhi in the case of Sudhir Kumar Aggarwal v. Directorate General of GST Intelligence in W.P.(CRL) 2686/2019 dated November 6, 2019, held as under:

  • Accepted Revenue’s contention of the SC decision in Nandini Satpathy vs. P.L. Dani and Anr. (1987(2) SCC 424) cannot be relied upon as present case pertains to fraudulent availment of ITC of GST, observes that GST Officers are de facto, not police officers and the offense committed is also completely different.
  • Relied on the case of Poolpandi v. Superintendent, Central Excise [1992 AIR 1795 (SC)], wherein the SC had categorically stated that presence of a lawyer cannot be allowed during examination/ interrogation by a Customs Officer. It was held that relevant provisions of the Constitution in this regard have to be construed in the spirit in which they were made and benefit thereunder should not be extended to exploiters engaged in Tax Evasion at the cost of public exchequer.
  • Further, relied on the case of Sudhir Gulati v. Union of India [1998 (100) E.L.T. 344 (Del)], wherein the HC, Delhi had also categorically held that assistance of a lawyer cannot be allowed while examination of a person in the Customs Office.

Furthermore, noted that the Petitioner in the present case was summoned by the GST Officers who are not Police Officers and who have been conferred with the power to summon any person whose attendance they consider necessary to give evidence or to produce a document. The presence of the lawyer, therefore, is not required during the examination of the Petitioner.

Citation: TS-1006-HC-2019