TaxTMI 
TaxTMI 
TaxTMI 
1. Despite the fact that GSTAT is functional now and various jurisdictional high courts simply set aside or even quash the show cause notices, adjudication orders as well as First Appellate Authority orders in all the deserving cases, there seems to be no respite on this issue as the tax officials are insensitive be it at state level or central level.
2. The most common errors which the tax officials continue to do even after their own orders are quashed is a cause of real concern as the tax officials at the rank of Joint/ Additional Commissioner who are the highest adjudicating officials also ignore the following issues and digitally sign the orders keeping the quantum of demand in SCN or OIO or OIA as high as possible, which is not solving any issues but increases the burden of tax official as well as the tax professionals. Above all the precious time of higher courts is spent on procedural issues rather than on interpretation of law.
3. All the orders pertaining to the financials years 2024-25 onwards deserve the appeal before First Appellate Authority or GSTAT as the case may be, wherever the demand is high and if they are covered in any one or more of the following category.
4. Section 73 and 74 are not operational from 01/04/2024 onwards as new section 74A is introduced. In case order is passed either under 73 or 74, the same is without any jurisdiction and liable to be quashed especially for the period commencing from 01/04/2024.
5. In case section 74 is invoked, but not in line with CBIC instruction number 05 dated 13/12/2023, the SCN as well as OIO and OIA are liable to be set aside by GSTAT if case is properly built in.
6. Single Show Cause Notice for multiple financial years is invalid except in cases of fraudulent activities. Passing single order against the SCN for multiple financial years is also impermissible and worth to challenge.
7. A minimum period of 89 days is required to pass the order in original from date of issuing the SCN under section 73. Kindly check this aspect. In case SCN is dated 10/01/2025, OIO has to be passed only on or after 10/04/2025, but within outer limit of 73(10). Even if order is passed on 08/04/2025, the same is invalid in the eyes of the High Court.
8. In case the demand is on account of head mismatch, no demand is to be raised under 73 or 74 or 74A as all applicable taxes have already been paid and there is no short payment of tax.
9. In case SCN is posted only in portal and no other permissible mode was chosen, High Courts consider as non-effective service and suggest reminder by RPAD before passing OIO. Despite this, in case OIO is passed without personal hearing, it has to be challenged as this is against the principles of natural justice.
10. Section 16 (2) (c) of the CGST Act 2017 has been read down by the Tripura High Court. Buyers are not responsible for seller’s default of non- payment of GST so long as goods/services are received and payment including GST done through banking channel.
11. Cases where appeal was rejected by first appellate authority on the sole ground on limitation but there exist sufficient causes for the delay, GSTAT may condone the delay based on justified reasons.
12. Pre deposit of GST for appeal is permissible from electronic credit ledger. In case appeal is rejected quoting the reason as pre deposit is to be made through electronic cash ledger, the order may be appealed now before GSTAT.
13. The above cases are only illustrative. There are several other situations which warrant appeal before GSTAT.
14. All concerned may take advantage of the above few points so that the interest of the taxpayer is promptly protected.
15. It is hoped that this article reaches at least a few tax officials and even if there is a drop in number of SCN issued by even a single tax officer, the purpose of writing this article is partly achieved. In a similar manner, even in case some ten appeals are preferred by tax professionals after seeing this article, the purpose is 100 % achieved.