The shortfall in GST collections has for sometime now been a major concern for India’s department of revenue. While the slowdown is largely responsible for this, another significant reason for this shortfall are fraudulent claims of input tax credit availed on the basis of fake invoices.
According to government data, central GST authorities registered over 16,000 cases involving amounts worth Rs 11,251 crore in FY’19, up from just five cases involving an amount of Rs 13 crore as of FY’18 (GST regime kicked in from July 2017).
Such tax evasion activities affect the collection of revenue and pose a serious threat to the financial health of the country. To deter taxpayers from committing such offences, extreme criminal sanctions such as arrest and attachment of bank accounts have been permitted in certain cases under the GST law.
For instance, recently, as per the standard operating procedure issued last month, the government has directed senior officials of the Central Board of Indirect Taxes and Customs (CBIC) to attach bank accounts even in cases where people do not furnish their returns.
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Though it is understood that such power is necessary to ensure tax recoveries, they also provide scope for abuse and misuse.
Under GST law, a commissioner is empowered to order in writing for provisional attachment of bank accounts of a taxable person during the pendency of specified proceedings if he is of the opinion that it is necessary to do so to protect the interest of the revenue. This power given to the commissioner has no proper safeguard in place to ensure that such powers are not exercised arbitrarily unlike other provisions under GST law imposing criminal sanctions.
For instance, power to arrest can be exercised only in cases of grave offences after having reasons to believe that person has committed such offences. Further, this provision is also different from Income Tax Act (IT Act) wherein various safeguards are provided such as service of notice to be provided to the taxpayer before attaching property, approval of Principal Commissioner before attaching property etc. Though it is understood that the provisions under GST and IT Act may have different approaches, it may be worthwhile to consider adding safeguards under GST law similar to that of IT Act to prevent abuse of such power. There are certain issues under GST law with respect to grant of power of attachment of property that may be looked at again.
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First, the commissioner has been given unfettered power to order attachment of bank accounts based on his opinion. It is important to understand that since such exercise of power can have severe consequences, this power should be exercised only when there is sufficient material on record to justify that the taxpayer is about to dispose his property with a view to thwarting the collection of the demand.
While passing an order in writing, the commissioner should also be required to state reasons as to why such drastic power is exercised. However, currently, the ‘form’ in which the order has to be passed does not entail such requirement. Thus, this form may be amended to require Commissioner to state reasons while making such order.
There is some evidence to show that the Directorate General of GST Intelligence is even attaching the bank accounts of companies that are summoned as part of a broader investigation into a totally different company. In a sharply worded order that was passed recently, the Bombay high court has said that attachment of bank accounts cannot be done on a routine basis.
Second, under GST law, the applicability of the provision of attachment of bank account is not restricted to serious offences and thus may have far reaching consequences. Since the order of attachment can be made during the pendency of the proceeding and thus even before the determination of actual liability, it may result in forceful acceptance of tax demands by the person only for the purpose of survival in the business.
It is important to keep in mind that this power should neither be used as a tool to harass the taxpayer nor should it be used in a manner which may have an irreversible detrimental effect on the business of the taxpayer. Thus, such power should be exercised sparingly and should be resorted to only as a last resort. A legislative amendment may be made to this provision to restrict its applicability only to certain serious offences that involves fraud or wilful misrepresentation of facts.
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Third, the expiry period of such provisional attachment is one year from the date of order made by Commissioner to attach bank accounts. This expiry period may be reviewed and may be made flexible to allow order for provisional attachment to be ceased even before one year depending upon various factors such as taxable amount, financial health of the taxpayer, compliant behaviour of the taxpayer, etc.
Though it is understood that it is important to maintain law and order in the society and protect the interest of revenue, it must be noted that these provisions result in serious fiscal injuries. Thus, there is a need to strike a balance in this regard and thus, legislative amendments may be made to the provision granting powers to attach bank account to ensure that adequate safeguards are in place.
Vinti Aggarwal is a Research Fellow in the Tax Law Vertical at Vidhi Centre for Legal Policy. The views expressed here are personal.