Page 16 - Banking Finance October 2023

LEGAL UPDATE

Legal

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SC: Dying declaration can't evidence and material available on state of mind. It is just not enough for
record must be properly weighed in the court to say that the dying decla-
always be sole basis for
each case to arrive at an appropriate ration is reliable as the accused is
conviction conclusion. The reason why we say so named in the dying declaration as the
The Supreme Court has said that a per- is that in the case on hand, although assailant," the bench said.
son should not be convicted solely on the appellant-convict has been named
the basis of dying declaration if there in the two dying declarations as a per- ITC can't be claimed till
is some doubt about its veracity and son who set the room on fire, yet the seller pays tax: HC
acquitted a person who was convicted surrounding circumstances render such
and sentenced to death for burning his statements of the declarants very The Patna high court, in a recent deci-
son and two brothers to death on the doubtful," the bench said. sion that favours the GST authorities,
basis of statements made by the de- The bench, after examining all the evi- ruled that input tax credit (ITC) is akin
ceased before dying. dence and statements of witness and to a privilege or concession rather than
an inherent entitlement provided
A bench of Justices B R Gavai, J B dying declarations, said that there
Pardiwala and Prashant Kumar Mishra were contradictions and it had to ei- within the GST framework.
said that acceptability of dying decla- ther believe the dying declarations or The eligibility to claim ITC for a buyer
ration is high because it is done by a the oral evidence of the eyewitnesses. hinges not only on the amount col-
person at the time of death when ev- It accepted the plea of senior advocate lected by the seller (dealer) via the in-
ery motive to falsehood is silenced, Gopal Sankaranarayanan who, appear- voice raised, but also on the timely re-
and the man is induced by the most ing for the convict, submitted that dy- mittance of this sum by the seller to
powerful consideration to speak only ing declarations did not inspire any the government. The responsibility of
the truth. But the bench cautioned the confidence and could not be relied proving that the tax collected has been
courts not to rely on it blindly. upon. remitted to the government rests with
"It is unsafe to record the conviction "It is the duty of the prosecution to es- the buyer.
on the basis of a dying declaration tablish the charge against the accused "This high court decision explicitly
alone in the cases where suspicion, like beyond reasonable doubt. The benefit points out that a buyer is eligible to
the case on hand is raised, as regards of doubt must always go in favour of claim input tax credit (ITC) only if the
the correctness of the dying declara- the accused. It is true that dying dec- GST has actually been paid by the
tion. In such cases, the Court may have laration is a substantive piece of evi- seller (dealer). This will adversely im-
to look for some corroborative evi- dence to be relied on provided it is pact genuine buyers, who have already
dence by treating the dying declara- proved that the same was voluntary paid the GST component against the
tion only as a piece of evidence. The and truthful and the victim was in a fit invoice raised by the seller. If the seller

16 | 2023 | OCTOBER | BANKING FINANCE