Article, Taxation

The article aims in providing legal updates with regard to the above captioned subject.

Framing of guidelines/instructions for conducting search operations

The unjust and non-righteous actions of the departments across the country at the alarming level and the responses of the judiciary on such uncalled actions have raised the need for intervention of the higher authorities.

In regard of aforesaid, recently a detailed set of instructions/guidelines were issued by the CBI & C. GST Investigation Wing, which requires adherence of the instructions/guidelines while conducting search operation. A few of guidelines/instructions are:

• In event of search of a residential premises, a lady officer shall necessarily be part of the search team.
• The search shall be conducted in the presence of the two or more independent witnesses who would preferably be respectable inhabitants of the locality or any other locality in the absence of available witnesses in the same locality. The signature of such witnesses should be taken on the body of search authorization along with identity card.
• The officers conducting the search operations shall mandatorily carry their identity cards and show the same to the person in-charge of the premises.
• A Panchnama should be drafted mentioning all the necessary information regarding the search and list of documents/goods/things recovered during search.
• For the sensitive search operations, videography of the search proceedings may be considered.

Non-Appreciation of Mechanical Approach of Department while Provisional Attachment – Guj HC

In case of Vinodkumar Murlidhar Chechani v. State of Gujarat, the Hon’ble High Court of Gujarat held that the legislature has thought fit to confer upon the authority the power to provisionally attach the property of the assessee in the hope that such power is not exercised casually, but only after due and proper application of mind. The mechanical exercise of power should be curbed.

Presence of an Advocate during Interrogation permitted – Supreme Court

The Hon’ble Supreme Court in the matter of Vijay Sajnani v. Union of India, has permitted presence of advocate during interrogation with visible  distance but beyond the hearing range. Similar ratio was reiterated by the Hon’ble High Court of Judicature at Bombay in case of ArvindKumar Jain Dhakad v. Union of India.

The continuous efforts of the government and the judiciary have helped to create a balance between the power of search operation and rights of the noticee.