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April 4, 2022

GST officials summoned over detention of tax consultant by Gujarat HC

by CA Shivam Jaiswal in GST

GST officials summoned over detention of tax consultant by Gujarat HC

Fact and Issue of the case

This petition is preferred seeking the directions for issuance of Writ of Habeas Corpus for HITESH MUKESHBHAI PATEL, brother of the present petitioner who is alleged to be illegally confined by GST – B.D. TRIVEDI herein since 18.3.2022. The petitioner averred that HITESH MUKESHBHAI PATEL is the real brother and is engaged as Tax Consultant and work related to Gumasta License. Petitioner himself is also a Tax Consultant and he and his brother both reside together. It is the grievance made on the part of the petitioner (SANJAY MUKESHBHAI PATEL) that he was permitted to give two pairs of clothes to one GST officer at the main gate of the GST Office building on 20.3.2022 but till date he is not permitted to meet his brother.

Observation of the Court

The court has heard learned advocate Mr. Bhadrish  Raju  for  the  petitioner. Learned advocate urged that the Apex Court in  the  case  of  D.K.Basu vs. State of W.B.  reported  in  (1997) 1 SCC 416 has  already laid  down the  requirement  of  principles  laid down here to govern all enforcement agencies which would also  apply  to  the  GST  Officials.    He  has  further  urged that these guidelines also have been explicitly applied to the GST department by virtue of the  decision  of  this  Court  entered  in  the case of Vimal Yashwantgiri Goswami v. State of Gujarat reported in [2020] 121 taxmann.com 3 (Gujarat)

While producing the person arrested under Section 69 of the CGST Act, the importance of valid, proper and exhaustive arrest memo should not be undermined. Every authorized officer under the Act, 2017 carrying out arrest must be clear that the preparation of an arrest memo is mandatory.

The safeguards mandated through the guidelines  mentioned in D.K. Basu (supra) case, particularly the requirement to prepare an arrest memo, are directed towards   “transparency   and   accountability”   in the powers to arrest and detain. These safeguards flow from the fundamental rights guaranteed in Articles 21 and 22 respectively of the Constitution  of  India.  The life and liberty of a person is secured under Article 21 and supplemented by Article 22 that provides key protection against the arbitrary arrest or detention  to  every  arrested  person.”

Issue Notice returnable on 24.3.2022. Learned APP  waives service of notice on behalf of STATE OF GUJARAT.

Conclusion

B.D. TRIVEDI shall present himself before this Court along with the Corpus at 11:00 a.m. tomorrow. He shall also bring before this Court the detail compliance of D.K.Basu (supra) and the decision of Vimal Yashwantgiri Goswami (supra).

Vibracoustic-India-Pvt.-Ltd.-Vs-Addl.-IT-ITAT-Delhi-1

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