P.V. Rao v. Senior Intelligence Officer, Directorate General of GST Intelligence & Ors
[Citation -2020-LL-1118-41]

Citation 2020-LL-1118-41
Appellant Name P.V. Rao
Respondent Name Senior Intelligence Officer, Directorate General of GST Intelligence & Ors.
Relevant Act CGST
Date of Order 18/11/2020
Judgment View Judgment
Keyword Tags dispensation of justice • goods and services tax • tax evasion • advance

$ 4 * IN HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 18.11.2020 + W.P.(C.) No. 8975/2020 P.V. RAO . Petitioner Through: Mr. Tarun Gulati, Senior Advocate with Mr. Atulya Kishore, Mr. Rajat Bose and Mr. Rishi Garg, Advocates. versus SENIOR INTELLIGENCE OFFICER, DIRECTORATE GENERAL OF GST INTELLIGENCE & ORS. . Respondents Through: Mr. Hardeep Singh, Standing Counsel for R-1 and R-2. Mr. Anil Dabas, Advocate for R-3/UOI. CORAM: HON BLE MR. JUSTICE MANMOHAN HON BLE MR. JUSTICE SANJEEV NARULA JUDGMENT SANJEEV NARULA, J. (Oral) CM APPL. 28982/2020 & CM APPL. 28983/2020 (for exemption) 1. Exemption allowed, subject to all just exceptions. 2. applications stand disposed of. W.P.(C.) No. 8975/2020 & CM APPL. 28981/2020 (for stay) 3. Petitioner has evoked extraordinary jurisdiction of this Court by filing present petition under Articles 226 and 227 of Constitution of India, seeking writ of Mandamus to direct Respondent No. 1, Senior W.P.(C) 8975/2020 Page 1 of 11 Intelligence Officer, Director General of GST Intelligence ( DGGSTI ) to allow Petitioner to tender his statement and adduce evidence through video conferencing, in relation to summon issued under Section 70 of Central Goods and Services Tax Act, 2017 ( CGST Act ). 4. factual background necessary for purpose of deciding present petition can be summarized as follows: Petitioner is presently employed by Think and Learn Private Limited ( Company ) in capacity of Chief Financial Officer ( CFO ). This company is engaged in business of providing online courses, classes etc. through its website and mobile applications by brand name BYJU S . Respondent No. 1, DGGSTI, is presently carrying out investigation under Section 67 of CGST Act in relation to Company, for evasion of GST on books/printed material being supplied by Company, by mis-declaring such supplies under exempted category. In this regard, from 27th to 29th October, 2020, Respondent No. 1 along with team of officers of DGGSTI visited premises of Company at Bengaluru for carrying out inspection under Section 67 of CGST Act in order to ascertain admissibility of exemption being availed by company. Petitioner asserts that his statement was recorded on 28th October, 2020 from 2:00 pm to 6:00 pm. However, owing to his ill health and age-related morbidities, he fell severely unwell during recording of his statement and accordingly consulted doctor who prescribed medication and advised rest for period of three days. 5. Subsequently, Respondent No. 1 summoned Petitioner, requiring him to tender his statement and present evidence before him on 5 th November, 2020 at New Delhi. Petitioner represented that, owing to his ill health and rising number of COVID-19 infections across country, it was W.P.(C) 8975/2020 Page 2 of 11 not safe for him to travel to New Delhi for recording of his statement, and requested that he be permitted to appear through video conference. said request was declined and Petitioner was directed to present himself for tendering statement on 10th November, 2020. Petitioner once again vide letter dated 9th November, 2020 informed authorities that he will be unable to appear on said date, owing to his health issues. In these circumstances, Petitioner has approached this Court seeking writ of Mandamus for directing Respondent No. 1 to record his statement through video conference. 6. At time of first listing, Mr. Harpreet Singh, learned Senior Standing Counsel for Respondent, appeared on advance notice and objected to prayer sought in present petition, contending that Petitioner was not cooperating in investigation and merits no indulgence by this court. Since said averment was disputed by learned Senior Counsel for Petitioner, we directed Respondent to file status report. At same time, on request of learned Senior Counsel for Petitioner, we permitted Petitioner to place on record his past medical history. 7. In terms of aforesaid directions, Respondent No. 1 had filed detailed Status Report recounting sequence of events relating to inspection carried out at business premises of company from 27th to 29th October, 2020. status report reveals that on 27th October, 2020, Petitioner introduced himself as CFO of company and informed investigating team that he was Chartered Accountant looking after day-to-day expenses of company relating to accounts and Direct/Indirect Taxes. As Petitioner introduced himself as person responsible for looking after day-to-day workings pertaining to W.P.(C) 8975/2020 Page 3 of 11 accounts and Direct/Indirect Taxes, summon dated 27th October, 2020 was issued to Petitioner under Section 70 of CGST Act, for clarifications on documents/data inspected during course of investigation. In response thereto, requested for further time on ground that he was busy collecting requested data/documents. He stated that he would be unable to tender statement and requested that same may be recorded on 28th October, 2020. His request was accepted by Respondents on humanitarian ground, proceedings were concluded and officers left premises. However, Petitioner was asked to submit documents/data which was called for during day. On 28th October, 2020, officers again went to premises at around 12:00 pm and resumed inspection/investigation and Petitioner was again asked to provide documents, which had not been provided on 27th October, 2020. Later in day, Petitioner was again asked to tender statement as previously committed by him. However, on one pretext or other, he delayed tendering of statement. Thereafter, short statement was recorded on 28th October, 2020, wherein Petitioner gave general information relating to his job responsibilities and business module of company. At that stage, at about 7:30 pm he requested officers to defer recording of his statement to 29th October, 2020 on account of health issues. This request was again accepted and day s proceedings were concluded and officers left premises. On following date i.e. 29th October, 2020, when officers reached business premises of company, Petitioner was not available. After some time, he joined proceedings and when asked to continue with statement, he again cited ill health and his doctor s advice and requested proceedings against him be concluded. medical certificate of said date furnished by Petitioner in support of his contention, did not indicate anything to this effect. Nevertheless, officers considered his request favourably and did W.P.(C) 8975/2020 Page 4 of 11 not insist on recording his statement on that day. Accordingly, fresh summons were issued to Petitioner for his appearance at DGGSTI, Delhi office. At this stage vide e-mail dated 29th October, 2020, Petitioner informed officers that due to his prior commitments, he would not be able to appear in-person and further stated that due to ongoing pandemic situation, his statement may be recorded through video conference. Considering Petitioner s ground of prior commitments , he was again given time and fresh summons dated 5th November, 2020 were issued for his appearance on 10th November, 2020. He was also informed that his request for recording of statement through video conferencing was not feasible because clarifications were required to be sought with respect to documents which were obtained during inspection. 8. Mr. Tarun Gulati, learned senior counsel for Petitioner strongly urges that Petitioner is in high-risk and vulnerable age group, and is staying at home to extent possible, to protect himself against risk of contracting COVID-19 and, therefore, his request to appear through video conferencing should be allowed. He contends that owing to Petitioner s ill health and age related co-morbidities, it is not safe for him to travel from Bengaluru to Delhi for recording of his statement. He submits that in Delhi, COVID-19 infections are on rise and therefore, considering Petitioner s health condition, he would be at grave risk. Mr. Tarun Gulati argues that Petitioner should be allowed to appear through video conferencing practice followed by various judicial and quasi-judicial fora in India, including this Court to contain spread of COVID-19. In support of his submissions, Mr. Gulati refers to Additional Affidavit filed in pursuance to permission granted vide this court s order dated 12th November, 2020. He drew our attention to various annexures enclosed W.P.(C) 8975/2020 Page 5 of 11 alongwith said Affidavit, particularly blood test reports and medical prescription of doctor. Mr. Gulati emphasises that blood reports indicate that Petitioner has high cholesterol and glucose levels. He also refers to medical prescription of doctor to stress that Petitioner is patient of hypertension, diabetes and high cholesterol indicates high risk-factor for heart disease. Mr. Gulati submits that doctor had also observed that Petitioner had suffered mild heart attack recently and his case was under medical evaluation. He submits that in these circumstances, it is not advisable for Petitioner to undertake any travel as it would expose him to risk of contracting COVID-19 disease. In support of his contentions, Mr. Gulati also relies upon order passed by High Court for State of Telangana on 17th September, 2020 in W.P. No. 15690 of 2020 titled Ilangovan G. v. Union of India & Ors. He submits that in somewhat similar situation, Petitioner in said case had challenged summons directing his physical presence to give oral evidence in relation to enquiry into service tax related issues. Court, after taking judicial notice of COVID-19 pandemic and related risk of infection to people travelling from one place to another during such times, had directed Respondents not to insist on personal attendance of Petitioner and had permitted Petitioner to record his statement in evidence through virtual mode. Mr. Gulati also relies upon decision in case of State of Maharashtra v. Dr. Praful B. Desai, (2003) 4 SSC 601, wherein Supreme Court permitted recording of evidence of witness by way of video conferencing. Besides, Mr. Gulati also draws our attention of this Court to Board Circulars dated 13th October, 1989 and 20th January, 2015 to contend that Senior Management Officials such as CEO, CFO and General Managers of large companies should not be issued summons casually. In support of this view, he also relies upon judgment of this Court in National Building Construction Company W.P.(C) 8975/2020 Page 6 of 11 Limited v. Union of India, [2019 (20) G.S.T.L. 515 (Del.)], to contend that Court had observed that even when facts are to be ascertained and documents are required, personal presence of senior officer may not be necessary unless there are compelling reasons. Lastly, Mr. Gulati, also relies upon orders of Supreme Court relating to guidelines of Court functioning through video conferencing during COVID-19 pandemic. He also submits that Central Board of Indirect Taxes vide instructions dated 27th April, 2020 too has directed that personal hearing in all matters under Customs Act shall be undertaken through video conferencing. 9. Mr. Harpreet Singh, Senior Standing Counsel appearing for Revenue, controverts contentions of Petitioner. He contends that Petitioner has been most un-cooperative during investigation. He contends that Petitioner was afforded ample opportunities to record his statement when officers had visited business premises of Company, at which stage, Petitioner evaded recording of his statement on one pretext or other. Mr. Singh further argues that investigations are at initial stage and documents/data relating to case are sensitive and incriminating in nature. Detailed clarifications are required to be sought from witness which will only be feasible in case he physically joins investigation for recording of his statement. Mr. Singh further submits that if Petitioner s statement was recorded through video conferencing, he can have support system helping him and clarifications/answers can be motivated and influenced, which may adversely affect ongoing investigation. 10. We have given our thoughtful consideration to submissions advanced by learned counsel. petition, as originally filed, was W.P.(C) 8975/2020 Page 7 of 11 accompanied with medical leave certificate dated 29th October, 2020, which merely certified as follows (sic): This is to certify that P V Rao aged 57 years under my treatment for Moderate hypertension & anxiety disorder on 29/10/2020 advised rest for 3 days (three days) with effect from 29/10/2020. 11. aforesaid certificate merely indicates that Petitioner was undergoing treatment for moderate hypertension and had been advised rest by doctor for three days. Apart from aforesaid document, there was no other medical document placed on record which could substantiate that Petitioner suffered from any serious ailments, which is main plank of Petitioner s case. However, at time of hearing, when confronted with this position, permission was sought by Petitioner s counsel to file Additional Affidavit. This Affidavit was enclosed with blood test reports and yet another medical prescription. These blood test reports again do not suggest any serious ailment except for high levels of cholesterol and mean plasma glucose. In any event, certificates given by doctors only indicate that Petitioner is undergoing treatment of hypertension and diabetes and has high risk-factor for heart disease. In these circumstances, during course of hearing, we had put it to Mr. Tarun Gulati that documents placed before us do not indicate any serious health issues that could prevent Petitioner from undertaking any travel from Bengaluru to Delhi, and in these circumstances, we would like to have Petitioner examined by medical board of Government Hospital comprising of experts in field, who, after examining Petitioner, could give their opinion viz. Petitioner s health status, including whether he is in position to undertake travel from Bengaluru to Delhi, as well as whether he is fit to make statement. Responding to this suggestion, Mr. Gulati submitted that such direction may not be necessary, as it is not W.P.(C) 8975/2020 Page 8 of 11 case of Petitioner that he is unable to undertake travel from Bengaluru to Delhi. He urged that although Petitioner can travel to Delhi, however, considering prevalent situation relating to COVID- 19 pandemic, he is likely to be exposed to risk of contracting coronavirus. Further, as Petitioner has co-morbidities, in event Petitioner contracts COVID-19 disease, it would have long-term ramifications on his health, and therefore, his statement be recorded through video conferencing instead. 12. In view of aforesaid stand of Mr. Gulati, it manifests that Petitioner s health condition does not impede his ability to undertake travel. only ground that is urged for our consideration is whether current COVID-19 pandemic situation can ipso facto be cited as ground to insist that tendering of statement be done through video conferencing. Concededly, investigation is ongoing and Respondent wants to unearth role of Petitioner in alleged tax evasion by Company. previous conduct of Petitioner, at stage of inspection when officers of Respondents were visiting Bengaluru, demonstrates that Petitioner consistently avoided recording his statement on one pretext or other. Thus, having regard to past non- cooperative conduct of Petitioner, and mere apprehension or fear of Petitioner of contracting COVID-19 infection, we would not like to interdict or interfere in investigation process. No doubt, due to recent outbreak of COVID-19, Courts of this country including Supreme Court as well as this Court have adopted measures to reduce physical presence of lawyers and litigants, and several social-distancing guidelines have been issued by several health authorities as well as Government of India. In this process, use of modern technologies has been put to use for dispensation of justice by Courts. However, that W.P.(C) 8975/2020 Page 9 of 11 is not situation before us. statement to be recorded in not during trial before court of law. Therefore, judgment of Supreme Court in State of Maharashtra v. Dr. Praful B. Desai (supra), relied upon by Mr. Gulati, in this regard, does not apply to facts and circumstances of present case. order passed by High Court for State of Telangana in Ilangovan G. v. Union of India & Ors. (supra), is only interim order and is distinguishable on facts. We are concerned with investigation being carried out by investigating agency. evidence being recorded at this stage would impact entire investigation of tax evasion. questioning during investigation has to be on basis of evaluation and examination of documents. During process of interrogation, investigating agency may come across certain relevant facts and discoveries which are germane and crucial for concluding investigation. Judicial interference at this threshold stage, in such matters relating to investigation, has to be exercised with circumspection. concept of balance of convenience, therefore, cannot be tilted in favour of Petitioner to be allowed to appear through video conferencing, merely because travelling from Bengaluru to New Delhi would be risk factor for Petitioner of contracting COVID-19. This mere apprehension of contracting COVID-19 does not persuade us to grant relief sought for by present Petitioner. 13. For foregoing reasons, we do not find any merit in present petition. While dismissing writ petition, we take statement made by Mr. Harpreet Singh on record, to effect that while recording statement of Petitioner, as and when he appears before Respondents, all safety measures and protocols would be in place, and that his statement would be recorded and concluded on day-to-day basis so that Petitioner W.P.(C) 8975/2020 Page 10 of 11 would have to travel to Delhi only once. Accordingly, Petition along with pending application, is dismissed. SANJEEV NARULA, J MANMOHAN, J NOVEMBER 18, 2020 nd W.P.(C) 8975/2020 Page 11 of 11 P.V. Rao v. Senior Intelligence Officer, Directorate General of GST Intelligence & Or
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