GST-Arrest Provisions’; SC observes on need for safeguards, coercion, payment; To hear Revenue tomorrow

SC continues hearing the Petitioners in 200+ criminal writ petitions challenging  constitutional validity of ‘Arrest’ provisions under GST and deliberates upon the need for incorporating safeguards against ‘Arrest’ under the GST law, embarks on doctrine of ‘checks and balances’ as far as the construct of the provision goes since it is seen that summons issued under section 70 are directly leading to arrest on the spot under section 69; Primarily, the Petitioners canvass arguments around powers of search, seizure, investigation, provisional attachment, arrest/authorization to arrest and even the initiation of proceedings having vested in  one ‘Proper Officer’; Further, ‘Power to Arrest’ being ‘exclusive’ and not ‘incidental’; Petitioners also identify gaps in ‘investigation’ mechanism and urge the Bench to examine power of tax authorities to ‘Arrest’ under GST and cite Radha Krishnan Industries and Mohit Minerals; The Bench contemplates “What are the safeguards provided against arrest? If there is no power to compel assessee to pay, can we infer such power? or can we force assessee to pay? Therefore, when assessee is put under coercion of arrest should there not be an embargo that assessee shouldn’t be asked to pay. What steps can be taken to ensure that payment is voluntarily without force and coercion.” and the like; Justice Sanjiv Khanna suggestively remarks that the ‘GST is a self-assessment Scheme’, contemplates several propositions, giving option of 2 days to assessee to deposit tax voluntarily before arrest and the like; On recording of statement and coercion, the Petitioners highlight practical difficulties; Senior Advocate Sujit Ghosh apprises the Bench about how judicial review is restricted as section 69 is predicated on ‘reason to believe’ and suggests the phrase be replaced with ‘reason recorded in writing’; Senior Advocate Tarun Gulati appearing in Akhil Krishan Maggu case stressing on how ‘self-assessment’ is linked with filing of returns highlights absence of provision for rectification of return and  makes submissions on width of the powers initiating criminal action rests with one single person; Briefly, ASG Raju, appearing for Revenue, submits that ‘Arrest’ is dependent on the incriminating material found against the accused and refers to CBIC Instruction while contending that all the issues faced by taxpayers have been addressed therein and clarifies that ‘Arrest’ is made only in cases of fraud and not genuine cases; To support its arguments, ASG cites PV Ramana Reddy; The Bench is set to hear ASG Raju tomorrow