GST has completely revamped the indirect tax arena in India. As promised, it has reduced the levy of multiple taxes, and promoted transparency to a great level by reducing human intervention. With the aim of ensuring that businesses do not take undue advantage of the law, the legislature has time and again emphasized the need for a strong compliance verification mechanism. Thus, in order to ensure scrutiny proper functioning of businesses, Officers under the CGST Act1, have been empowered to investigate, conduct audits and hold inquiries of taxpayers registered under GST laws.
Section 65 of the CGST Act empowers tax officers to conduct GST Audits and lays down the procedure for conducting audit proceedings. Section 67 of the CGST Act authorizes tax officers to inspect any place of business of a taxable person and provides a procedure for carrying out the search, seizure, and inspection. Such provisions have led to the initiation of proceedings like assessment, scrutiny, search, seizure, investigation, etc. which if conducted simultaneously, would lead to a multiplicity of notices and duplication of efforts by assesses in responding to authorities. There have been instances where a taxable person has received notices from different wings of GST departments for the same period. Whether multiple proceedings can be conducted simultaneously for the same tax period is a moot question that has not been dealt with within the four corners of the law.
In this regard, various courts have from time to time given a digressing opinion on the validity of parallel proceedings under GST laws. Recently, the issue of an investigation conducted by the Anti-Evasion wing, Range Office of GST Department, and proceedings conducted by the Audit Department came up for consideration before the Calcutta High Court. After receiving adverse order from the single-member bench, the assessee filed an appeal before the Division Bench, wherein it has been held that parallel proceedings cannot be conducted by three wings of the Department for the same period. Since audit proceedings have already commenced, the Anti-Evasion wing and Range Officer were restrained to further proceed in their proceedings initiated against the Petitioner for the same period. [M/s R.P. Buildcon Private Limited Vs the Superintendent].2 Similarly, the Calcutta High Court in the case of M/s Ideal Unique Realtors Limited Vs Anr. Vs UOI3 has held that no parallel proceedings can be initiated without the ongoing proceedings being taken to the logical end. Another positive decision was rendered by the Delhi High Court in the matter of M/s Watermelon Management Services Private Limited Vs The Commissioner, Central Tax, GST Delhi (East) & Anr,4 wherein in case of simultaneous investigations, the Commissioner, Delhi GST was directed to hand over the investigation to DGGI,5 who was further instructed to conclude the investigation within three months.
Despite these positive reliefs from various High Courts, there are divergent views taken on the same issue. For instance, the Kerala High Court in the case of M/s Suresh Kumar P.P. Vs DGGI6 has held that Audit is a routine procedure to be carried out by the Department under Section 65 of the CGST Act and is, therefore, independent of an investigation conducted under Section 67 of the CGST Act. Accordingly, carrying out two proceedings (audit and investigation) at the same time was held not to be illegal and defective. Moreover, such a decision passed by Kerala High Court has been affirmed by the Supreme Court in the case of M/s Suresh Kumar P.P. Vs DGGI,7 wherein the Apex Court has held that audit and investigation proceedings can be initiated simultaneously by different authorities.
The diverse rulings passed by different courts on this issue are yet another example of unpredictable and inconsistent views taken by the judiciary on matters which are crucial and save the taxpayer from the hassles of answering to different authorities for the same period. The hassle created by parallel proceedings has always been a contentious issue under the erstwhile indirect tax regime as well wherein different wings of tax authorities for the same period were issuing notices to taxpayers. Under the service tax regime, a return scrutiny system was introduced, wherein there was preliminary scrutiny of all returns, and detailed manual scrutiny of select returns identified based on risk parameters to be done by the Division/ Range offices. To avoid duplicity of scrutiny, a Circular8 was issued by the CBEC9 wherein it was clarified that audit and detailed manual scrutiny for a select assessee cannot be conducted for the same period at the same time.
Given the lack of clarity under GST laws on conducting parallel proceedings and conflicting views taken by various courts about the validity of multiple/ parallel proceedings has resulted in confusion among taxpayers and calls for clarification by GST Authorities on the same at the earliest.
The legislature intends to empower tax authorities to prevent tax evasion and establish checks and balances for the smooth execution of provisions of GST laws. However, under the garb of tax evasion, and fulfilling 'targets', taxpayers are often harassed and have to undergo undue hardships. Such parallel proceedings initiated by different tax authorities are denying promised ease of doing business and increasing frivolous litigations in the same period which not only creates logistic issues but also increased the litigation cost for the assessee which can be easily avoided. The CBIC10 must provide clarity concerning the validity of parallel proceedings initiated by the audit wing and investigation wing to bring uniformity to multiple proceedings undertaken by such tax authorities.
1. The Central Goods and Services Tax Act, 2017
2. Appeal No. M.A.T. No. 1595 of 2022, Order dated September 30, 2022
3. FMA 297 of 2022, Order dated April 22, 2022
5. Directorate General of GST Intelligence
6. W.A. No. 943 of 2020, Order dated August 14, 2020
7. Special leave Petition No. 13128 of 2020, Order dated January 7, 2021
8. Circular No. 185/4/2015-ST dated June 30, 2015
9. Central Board of Excise and Customs
10. Central Board of Indirect Taxes and Customs
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