1. Ascertaining truth of the fact is evidence, which may be either documentary or oral. One of the most prominent Smritis dealing with Dharmasastra dates back to the 1st century BC. It dealt with ‘pramaana’ (evidence) and ‘sakshi’ (witness). We had complete code of Evidence in the year 1872, drafted by Sir James Flitzjames. The Indian Evidence Act, 1872 is based on the English Evidence law. Latin Words ‘evidens’ and ‘evidere’ gave birth to the word ‘evidence’, which means to ‘prove’ or to ‘discover clearly’. According to Sir Taylor ‘Law of Evidence means through argument to prove or disprove any matter of fact, the truth of which is submitted to judicial investigation.’ The Indian Evidence Act, 1872 has been repealed and in its place Parliament has enacted The Bharatiya Sakshya Adhiniyam, 2023 (Act No.47 of 2023), which received the assent of the President of India on 25.12.2023. However, the GST Acts need to be amended wherever reference has been made to the Indian Evidence Act, 1872, like in Section 111 (2) (d) of the CGST Act, 2017. Primary evidence is the best form of evidence. Anything short of this is secondary evidence. Original tax invoice is the best evidence and a photocopy of the same is the secondary evidence. Supplementary evidence, which fortifies the initial evidence is the corroborating evidence.

2. The Central Goods and Services Tax Act, 2017 (hereinafter referred to as the ‘GST Act’) came into effect from 1.7.2017. It provided for levy of tax on the supply of goods or services or both. It is but natural that in an indirect tax statute, evidence has to be placed on record, concerning existence of business premises, identification of persons doing business, actual conduct of business, supply and receipt of goods or services or both, issue of invoices, credit and debit notes, etc., transport of goods, provision of services, filing of returns, payment of taxes, physical receipt of goods and services, proof of export / import, maintenance of books of account, proof of service of notices /orders, proof of categories of supplies like composite and mixed, proof of threshold limits, claim of input tax credit, proof of making TCS and TDS, refund claims, etc. Statute itself makes it mandatory to furnish certain evidence in some situations and there is no exception from it. Any evidence produced must be valid, convincing and beyond reasonable doubt.

3. Section 145 of the GST Act specifically deals with admissibility of micro films, facsimile copies of documents and computer printouts as documents and as evidence. This Provision reads as follows:-
“145. (1) Notwithstanding anything contained in any other law for the time being in force,-
(a) a micro film of a document or the reproduction of the image or images embodied in such micro film (whether enlarged or not); or

(b) a facsimile copy of a document; or

(c) a statement contained in a document and included in a printed material produced by a computer, subject to such conditions as may be prescribed; or

(d) any information stored electronically in any device or media, including any hard copies made of such information,
shall be deemed to be a document for the purposes of this Act and the rules made thereunder and shall be admissible in any proceedings thereunder, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.

(2) In any proceedings under this Act or the rules made thereunder, where it is desired to give a statement in evidence by virtue of this section, a certificate,-

(a) identifying the document containing the statement and describing the manner in which it was produced;

(b) giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer,
shall be evidence of any matter stated in the certificate and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

3.1 Section 2 (41) of the GST Act provides an inclusive definition of ‘document’ thus “document” includes written or printed record of any sort and electronic record as defined in clause (t) of section 2 of the Information Technology Act, 2000 (21 of 2000);”

4. Section 2 (e) of the Bharatiya Sakshya Adhiniyam, 2023 (hereinafter referred to as BSA, 2023) defines ‘evidence’ as follows:-
“2 (e) “evidence” means and includes—
(i) all statements including statements given electronically which the Court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry and such statements are called oral evidence;

(ii) all documents including electronic or digital records produced for the inspection of the Court and such documents are called documentary evidence;’
Section 2 (d) of the BSA, 2023 defines ‘document’ as follows:-
“(d) “document” means any matter expressed or described or otherwise recorded upon any substance by means of letters, figures or marks or any other means or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter and includes electronic and digital records.
Illustrations.
(i) A writing is a document.
(ii) Words printed, lithographed or photographed are documents.
(iii) A map or plan is a document.
(iv) An inscription on a metal plate or stone is a document.
(v) A caricature is a document.
(vi) An electronic record on emails, server logs, documents on computers, laptop or smartphone, messages, websites, locational evidence and voice mail messages stored on digital devices are documents;’

Section 61 of the BSA, 2023 is an important new provision:-
“61. Nothing in this Adhiniyam shall apply to deny the admissibility of an electronic or digital record in the evidence on the ground that it is an electronic or digital record and such record shall, subject to section 63, have the same legal effect, validity and enforceability as other document.”

Section 63 of the BSA, 2023 deals with ‘admissibility of electronic records’. Sub section (4) thereunder reads as follows;-
‘(4) In any proceeding where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things shall be submitted along with the electronic record at each instance where it is being submitted for admission, namely:—

(a) identifying the electronic record containing the statement and describing the manner in which it was produced;

(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer or a communication device referred to in clauses (a) to (e) of sub-section (3);

(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,
and purporting to be signed by a person in charge of the computer or communication device or the management of the relevant activities (whichever is appropriate) and an expert shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it in the certificate specified in the Schedule.’
Schedule to the Adhiniyam shows the format of the certificate.

5. A taxable person comes into contact for the first time with the authorities under the GST Act while applying for registration. Rule 8 (4) of the CGST Rules, 2017 (hereinafter referred to as the GST Rules) prescribes that the documents specified in FORM GST REG-01 shall accompany the application. ‘List of documents to be uploaded’ is available on this form like photographs, partnership deed etc., relating to constitution of business, proof of principal place of business, etc.

6. In SRG Plastic Company v Commissioner, Delhi GST T & T Department (2023-150 taxmann.com 261), honourable Delhi High court ruled that prescription of documents in circular No.125/44/2019 does not preclude the concerned officer from calling upon the refund-claimant to furnish any other relevant documents that he considers necessary for processing the application for refund. Annexure A in Circular No. 125/44/2019 dated 18.11.2019 contains list of all documents to be provided along with the refund application.

6.1 Proper officer is empowered to summon any person either to give evidence or to produce a document or any other thing in any enquiry as provided in the case of a civil court under the Provisions of the Code of Civil Procedure, 1908, vide section 70 (1) of the GST Act. Appellate Tribunal has been given similar powers under section 111 (2) of the GST Act. Section 113 (1) empowers the Appellate Tribunal to direct to take additional evidence, while remanding back the case to the lower authority. Appellant has an opportunity to produce any evidence for the first time before the appellate authority or the Appellate Tribunal subject to the circumstances mentioned in Rule 112 (1) of the GST Rules with a rider that such admission is subject to providing reasonable opportunity to the lower authority to examine such evidence vide sub Rule (3) of Rule 112.

7. Section 122 (1) (vii) of the GST Act mandates that if the taxable person fails to furnish information or documents called for by an officer in accordance with the provisions in the Act or the Rules made thereunder, he shall be liable to pay penalty of Rs.10,000 or an amount equivalent to the tax evaded, etc., whichever is higher. Persons receiving summons should also note that section 122 (2) of the GST Act provides for imposition of penalty, which may extend to Rs.25,000, if they fail to appear before the officer.

8. Input Tax Credit confers the benefit of output tax liability reduction. Being the benefit made available, it carries with it some conditions. According to section 155 of the GST Act, where any person claims that he is eligible for ITC, the burden of proving such claim shall lie on such person. For this purpose, he must produce required evidence. Evidence furnished will be verified to examine its veracity. Sub section (2) of section 16 lists the conditions to discharge the said burden from clause (a) to (d). Readers may also see Rule 36 of the GST Rules.

9. Generally in any business, evidence would be in the form of Books of account, Bank accounts, credit and debit notes, vouchers, document evidencing, receipt voucher for the advance received, e-waybills, invoices, consignment notes, etc. Entries in the books of account maintained in the regular course of business are primary evidence. However the authorities may refuse to accept the books of account, if other reliable evidence has been brought on record. Under Section 35 (3) of the GST Act, the Commissioner is empowered to notify a class of taxable persons to maintain additional accounts or documents for such purpose as may be specified therein.

10. Section 144 deals with presumption as to documents in certain cases. It reads as follows:-
“ Where a person produces any document, or where a document has been seized from a person, or a document has been received from outside India in the course of any proceedings and the prosecution tenders such document as evidence against any person, unless contrary is proved by such person, the court shall presume

(i) the truth of the contents of such document;

(ii) that the signature and every other part of such document which purports to be in the handwriting of any particular person or which the court may reasonably assume to have been signed by, or to be in the handwriting of, any particular person, is in that person’s handwriting, and in the case of a document executed or attested, that it was executed or attested by the person by whom it purports to have been so executed or attested;
(b) admit the document in evidence notwithstanding that it is not duly stamped, if such document is otherwise admissible in evidence.

11. Section 54 (4) of the GST Act requires that the evidence as prescribed, shall be filed, where the amount claimed as refund, exceeds Rupees two lakhs. Rule 89 (1) of the Rules prescribes filing of an application electronically in form GST RFD-01 through the common portal by the supplier or the recipient as the case may be, duly accompanied by the documents mentioned in Rule 89 (2) (a) to (m) of the GST Rules.

12. Maintenance of correct and complete accounts is of paramount importance to any business. For the successful completion of audit under the GST Act, evidence in the form of such maintained books would be of great help. Evidence in the form of all these books of account and documents also help in claiming ITC and refunds. Rule 56 of the GST Rules specifies maintenance of true and correct accounts for various categories of taxable persons.

13. Another debatable issue is evidence in the form of affidavits. Section 3 (3) of the General Clauses Act, 1897 defines ‘affidavit’ as follows:-
“—‘affidavit’ shall include affirmation and declaration in the case of persons by law allowed to affirm or declare instead of swearing”.

According to section 111 (2) ( c ) of the GST Act:-
“The Appellate Tribunal shall, for the purposes of discharging its functions under this Act, have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908.) while trying a suit in respect of the following matters, namely:-
(c) receiving evidence on affidavits;”

Honourable Supreme Court in Sudha Devi (Smt) V M.P. Narayanan (1988) AIR SC 1381 held that an affidavit is not an evidence as defined in Section 3 of the Indian Evidence Act, 1872. Hence conclusion based on affidavit, cannot be said to be based on evidence, unless contents of an affidavit are duly supported by admissible evidence.

In the case of Ayaaubkhan Noorkhan Pathan V State of Maharashtra (2013) 4 SCC 465, honourable Supreme Court held as follows:-
’36 Therefore, affidavits, in the light of the aforesaid discussion are not considered to be evidence, within the meaning of Section 3 of the Evidence Act. However, in a case where the deponent is available for cross-examination, and opportunity is given to the other side to cross-examine him the same can be relied upon.

A statement by a deponent can be held to be unreliable by the Tribunal either on the basis of cross-examination of the deponent or by reference to other material on record leading to the inference that the statement made in the affidavit, cannot be held to be true.’

14. Generally authorities do not consider the evidence produced without putting the same to the opposite party. In Special Circle, Pali V P.G. Foils Limited (2008)11 VST 942 (Raj) (HC), honourable Rajasthan High Court held as follows:-

‘In these facts and circumstances, it appears that the very foundation of the order dated February 8, 1999 is the additional evidence produced by the assessee and the pleas taken by the assessee on the basis of those documents and the Tax Board relied upon those documents without affording an opportunity of hearing to the Revenue nor gave any opportunity to the revenue to produce evidence to rebut the documentary evidence by the assessee and the Tax Board’s order dated February 8, 1999 is based on the evidence produced by the assessee, therefore, only on this ground alone, the order of the Tax Board dated February 8, 1999 deserves to be set aside.’

15. Evidence in the form of Expert’s opinion can be taken. Section 153 of the GST Act specifies that the concerned officer may take the assistance of any expert at any stage of scrutiny, inquiry, investigation or any other proceedings before him. In the case of Parle Agro P Limited v Commissioner of Commercial Taxes, Trivendrum (2017) 106 VST 1 (SC)), Honourable Supreme Court held as follows:-
“The expert authority and its opinion which were relied by the appellant were required to be adverted to both by the clarification authority as well as by the High Court and we are of the opinion that expert opinion and materials have been erroneously discarded.”

16. There has been an unending debate on whether the evidence seized during the course of illegal search can be used by the authorities. In the case of Poran Mal v Director of Inspection (1974) 93 ITR 505 (SC) honourable Supreme Court held that the evidence found in illegal search can be used against the person, from whose custody, it was seized.

17. It is settled law that on mere assumptions, guess work and suspicion, no tax can be imposed. Even the authorities are obliged to place on record sufficient valid evidence in support of any proposal made in the show cause notice. ‘Suspicion, how strong it may be is no evidence.’ In Dhakeshwari Cotton Mills Ltd v CIT (1954) 26 ITR 775 (SC), honourable Supreme Court held ‘there must be something more than bare suspicion to support the assessment’ In yet another case of Umacharan Shaw and Brothers v CIT (1959) 37 ITR 271 (SC), honourable Supreme Court held ‘there was no material on which the ITO could come to the conclusion that the firm was not genuine. There were many surmises and conjectures and if the conclusion is the result of suspicion, which cannot take place of proof in this matter.’

18. Authorities are also obliged to supply copies of all the documents relied upon by them along with the show cause notice. In the case of State of A.P. v Vogireddy Venkatareddy and Company (1989) 74 STC 179, where the CTO completed the assessment without supplying the documents relating to the enquiry conducted, honourable Andhra Pradesh High Court held thus ‘the whole procedure was contrary to the principles of natural justice. The procedure adopted was, to say the least, unfair and was calculated to undermine the confidence of the public in the impartial and fair administration of the Sales Tax department concerned.’

19. Cross examination and reliance on the third party evidence play an important role in determination proceedings. In Machilipatnam Consumer Co-operative Society Limited v State of A.P (1988) 7 APSTJ 218 (AP) (HC), honourable Andhra Pradesh High Court held that if any statements are recorded from the persons on whom reliance was placed, the assessing authority should afford an opportunity to the assesse to cross-examine such persons. In the case of Vijayalakshmi & Co. Aravalli v State of A.P. (1989) 8 APSTJ 110 (AP) (HC), honourable High Court of Andhra Pradesh held that any document filed by a third party can be relied upon as long as there is nexus between such document and the accounts of the assesse.

20. Honourable Supreme court had an occasion to observe on how to judge evidence in CIT v. Durga Prasad More (1971) 82 ITR 540 (SC) as follows:-

“Science has not yet invented any instrument to test the reliability of the evidence placed before a Court or a Tribunal. Therefore the Courts and the Tribunals have to judge the evidence before them by applying the test of human probabilities. Human minds may differ as to reliability of a piece of evidence, but that sphere decision of the final fact finding authority is made conclusive by law.”

Christopher Hitchens’ saying ‘what can be asserted without evidence can be dismissed without evidence’ would be equally applicable to the tax payers and the tax officers.
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[Source : Souvenir of 28th National Convention 2025]

Posted on: December 16th, 2025