A Cry of Silence against the Power of Summons

-By Axat Vyas, Jamnagar

At present, under the Goods and Services Tax regime, the methods of investigation have become an increasing concern for professionals in the legal field. Currently, investigations are focused more on “confessions” than on substantive evidence, and in many situations, the ‘Proper Officer’ empowered with the formidable powers of Section 70 of the Central Goods and Services Tax (CGST) Act, 2017, uses a person’s statement not merely as a guiding tool for investigation but as the primary weapon to prove guilt. In several cases, statements are obtained under pressure, false assurances, false inducements, false consolations, false guarantees, or undue influence, and thereafter, ignoring the “strict” requirement of independent evidence, these statements are accepted as the ‘ultimate truth.’ This practice raises a fundamental question of jurisprudence: “Can a statement obtained in the solitude of a departmental office suppress the sacred protections of the Constitution?”

The legal significance of such a statement lies in Section 70(4) of the CGST Act, which declares that every inquiry conducted under it shall be deemed a “judicial proceeding” within the meaning of Sections 193 and 228 of the Indian Penal Code (now Sections 229 and 268 of the Bharatiya Nyaya Sanhita, 2023). This legal presumption creates a high-pressure environment where the person summoned is legally bound “to speak the truth,” failing which or giving false testimony (perjury), action may be taken against the deponent. However, compared to the Code of Criminal Procedure (CrPC), there is a notable procedural vacuum here. Under Section 164 of the CrPC (now Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023), confessions must be recorded before a Magistrate, who can verify their voluntariness. Even if GST officers may exercise magisterial powers, magisterial neutrality cannot be expected from officers engaged in tax collection. Thus, statements under Section 70 are recorded before tax officers, who are interested parties in revenue collection. As the Hon’ble Supreme Court observed in Radhika Agarwal v. Union of India and Others [2025] 2 S.C.R. 1331 (para 47), summons are tools of investigation, but they cannot be used to bypass protections of criminal law by obtaining extra-judicial confessions. Similarly, in Md. Aniqul Islam v. DGGI [2025] SCC OnLine Del 1700 (para 12), it was held that issuing summons under Section 70 is not initiation of proceedings but merely a step in investigation. Therefore, recording statements under summons should be for gathering evidence to complete investigation, but instead, the current practice is to extract “confessions,” which is legally impermissible.

Consider a hypothetical yet common situation: a taxpayer is summoned in the morning and kept waiting until evening, or called late at night and kept until early morning, subjected to continuous questioning. In such cases, officers may indicate that unless a “favorable” statement is given or signed, the person will be repeatedly summoned and detained. If an officer records a statement under such coercion, inducement, or misrepresentation, and later uses it against the taxpayer or another person, can it be considered valid? In KTMS Mohd. v. Union of India [1992] AIR 1831 (para 25), the Supreme Court held that statements obtained by inducement, threat, or coercion are invalid; to have evidentiary value, they must be voluntary. Similarly, in Hem Raj v. State of Ajmer [1954] AIR 462 (para 10), the Court ruled that confessions must be proved free and voluntary, and the burden lies on the prosecution.

To curb such administrative risks, CBIC itself conducts awareness programs, seminars, training, and issues instructions for officers. Yet, in many cases, taxpayers’ own statements are weaponized by the administration—whether due to haste to conclude investigations or reluctance to gather independent evidence. In such times, retraction becomes the taxpayer’s primary remedy. In Deora Wires N. Machines v. Union of India [2024] SCC OnLine Guj 18, the Gujarat High Court held that orders based solely on retracted and unsupported confessions cannot stand; they violate principles of justice. Thus, if an officer has obtained a statement against a person’s will, upon realizing the truth, the person must immediately retract it by recording a new statement or, if not possible, by filing an affidavit of retraction.

Statements recorded under inducement, threat, or promise are rendered irrelevant by Section 24 of the Indian Evidence Act (now Section 22 of the Bharatiya Sakshya Adhiniyam, 2023). A taxpayer subjected to pressure should promptly submit an affidavit of retraction to the recording officer or their superior. In Intelligence Officer, DGGI v. Kesar Color Chem Industries [2025] KAR HC (paras 18, 22), the Karnataka High Court held that payments made under coercion are not voluntary assessments; coerced and retracted statements without independent corroboration cannot form the basis of recovery or proceedings. Likewise, the Delhi High Court in Md. Aniqul Islam v. DGGI [2025] SCC OnLine Del 1700 (paras 12, 15) ruled that statements obtained under pressure lose evidentiary value and must be retracted immediately. The Gujarat High Court in Deora Wires N. Machines v. Union of India [2024] SCC OnLine Guj (para 18) reiterated that retracted confessions without supporting evidence cannot sustain orders. Similarly, in Mahendra Kumar Singhal v. Union of India [2025] SCC OnLine Del (para 22), the Delhi High Court held that incriminating statements must pass the test of voluntariness; coercion nullifies their value.

Retraction is not merely a remedy but a process to elevate matters to the level of justice. Whenever a person has given an “unfavorable” statement contrary to fact, they must retract it formally. Often, taxpayers hesitate or fear to file retractions before the officer or their superior. In such circumstances, any retraction filed in any GST office is valid, and as per the Citizen’s Charter, the officer receiving it is bound to forward it to the investigating officer. Retraction reduces the evidentiary value of coerced statements in future proceedings. However, retractions made months or years later are considered “afterthoughts” and lose value. In Thiru S. Shyam Kumar v. ACIT [2008] 99 taxmann.com 39 (para 15), the Madras High Court held that delayed retractions are afterthoughts and lack evidentiary worth. The same rule applies to retractions as to confessions: both must be supported by independent evidence. In CIT, Bikaner v. Ravi Mathur [2025] SCC OnLine Raj (para 20), the Rajasthan High Court held that retracted statements require independent corroboration; relying solely on them violates natural justice.

Another crucial issue arises: can an investigating officer record a statement where a taxpayer admits guilt? And if such a statement is obtained even impartially, how valid is it legally? This leads to the paradox between Section 70 and Article 20(3) of the Constitution of India, which states: “No person accused of an offence shall be compelled to be a witness against himself.” The paradox lies in timing: the department argues that at the stage of summons, the person is a “witness,” not an “accused,” so Article 20(3) does not apply. Taxpayers argue that if the statement ultimately places them in adverse circumstances, raises demands, or leads to arrest or proceedings, then Article 20(3) protection should apply. To resolve this, officers should build cases on independent evidence, not on statements alone. Yet, often, statements are given primacy over logical evidence, leading courts to rule in favor of taxpayers.

Another important aspect is the “Right to Remain Silent.” Constitutionally, this is not a luxury but a necessity for the rule of law. Under Section 70, a person is bound to appear in response to summons, but not bound to answer questions that amount to confession of guilt. Officers cannot compel answers to incriminating questions; taxpayers are fully entitled to exercise their constitutional right to “pass” such questions. In Senior Intelligence Officer v. Sanjay Agarwal [2025] SCC OnLine TS (para 32), the Telangana High Court held that the right against self-incrimination under Article 20(3) extends to tax investigations where a person considers themselves suspect. Persons summoned must be informed of their right to remain silent on incriminating questions.

Statements recorded under Section 70 are pieces of evidence, but not “conclusive proof” of guilt. Without independent evidence, merely signing a departmental statement cannot constitutionally convict anyone. Courts have clarified that coercive tax recovery methods or arrests based solely on mandatory confessions without judicial process are unconstitutional and violate rule of law. Thus, statements are only starting points; the burden lies on the department to prove cases through independent evidence and due process. In Mahabir Biswas v. State of West Bengal [1995] 2 SCC 25, the Supreme Court held that confessions must be proved voluntary and true before reliance.

Finally, we must understand Article 13 of the Constitution, which declares that any law contravening the Constitution is void. If a person is convicted solely on the basis of a statement obtained under Section 70

(Author is a well known Tax Advocate & Economist)

(This is an AI Generated Translation of the Article originally written in Gujarati)