2023 (1) TMI 332 - HC - GST

GST DRC-01/DRC-01A optional; show-cause notice not required for revision under Section 22(4); Section 107 appeal preserved

M/s. Vishaka Exports Versus Assistant Commissioner (ST) (FAC)

HC held that issuance of Forms GST DRC-01 and DRC-01A is optional and not mandatory; a show-cause notice is not required for revision under Section 22(4) ... Service of SCN - discrepancies pertaining to difference in turn over between GSTR 1 and GSTR 3B, difference between GSTR 3B Vs GSTR 2A - input mismatch - it is alleged that the impugned order was not preceded by Forms GST DRC-01 and GST DRC-01A - show cause notice [SCN] was issued by the respondent before making the impugned order, or not - rectification petition under Section 161 of TN-G&ST Act. Whether the impugned order not being preceded by Forms GST DRC-01 and GST DRC-01A? - HELD THAT:- As the issue is now not statutorily imperative and as it is optional at the instance of the respondent (Revenue), the first point of campaign stands doused. This takes this Court to the second point namely, SCN prior to issue of the impugned order. Dealing with erstwhile 'the Tamil Nadu Value Added Tax Act, 2006 (Tamil Nadu Act No.32 of 2006)' [hereinafter 'TNVAT Act' for the sake of convenience and clarity] which stood subsumed by Goods and Services Tax regime which kicked in on and from 01.07.2017, this Court held that it is not imperative to issue a SCN for a revision under Section 22(4) of erstwhile TNVAT Act, 2006 unlike best judgment method revision under Section 27 of TNVAT Act wherein it is statutorily imperative to issue SCN before resorting to Section 27 of TNVAT Act - the expression 'errors apparent on the face of record' has been repeatedly explained by this Court to be errors which are so obvious and so palpable (tangible if one may say so) that no inferential process is required or no inferential process need to be applied to detect the error. A careful perusal of these issues set out herein will make it clear that they may not qualify as errors apparent on the face of record but this Court refrains itself from expressing any view or opinion on the same as this Court intends to preserve the rights of the writ petitioner to prefer a statutory appeal under Section 107 of TN-G&ST Act, if the writ petitioner is so advised and if the writ petitioner is desires to do so. This Court to the inevitable sequitur that the captioned main writ petition fails. However, before dismissing the captioned writ petition, it is made clear that all the rights and contentions of the writ petitioner are preserved, if the writ petitioner chooses to prefer a statutory appeal under Section 107 of TN-G&ST Act. The Writ Petition is dismissed. Issues Involved:1. Challenge to an order dated 22.06.2022 under Section 73 of TN-GST Act.2. Non-issuance of Forms GST DRC-01 and GST DRC-01A.3. Absence of a show cause notice (SCN) before the impugned order.4. Filing of a rectification petition under Section 161 of TN-GST Act.Analysis:1. Challenge to the Order: - The writ petitioner contested the order dated 22.06.2022 under Section 73 of TN-GST Act due to discrepancies in turnover and input mismatch noticed by the respondent. The petitioner raised three main points during the hearing.2. Non-issuance of Forms GST DRC-01 and GST DRC-01A: - The petitioner argued that the impugned order was not preceded by Forms GST DRC-01 and GST DRC-01A. However, the court noted an amendment to Rule 142 of TN-GST Rules, which made the submission of these forms optional rather than mandatory. Citing a previous case, the court clarified that the amendment altered the statutory requirement, rendering the argument invalid.3. Absence of Show Cause Notice (SCN): - The petitioner contended that no show cause notice was issued before the impugned order. The court referenced a previous case related to the TNVAT Act, highlighting that in certain revisions, including the one under consideration, issuing an SCN was not mandatory. The court noted that a personal hearing, although claimed by the respondent, was not a statutory requirement, thereby dismissing this argument.4. Rectification Petition under Section 161 of TN-GST Act: - The petitioner filed a rectification application under Section 161 of TN-GST Act, which allows rectification of errors apparent on the face of the record. The court examined the application and found that the issues raised did not qualify as errors apparent on the face of the record. The court emphasized the need for errors to be obvious and tangible without requiring inference, leaving the option open for the petitioner to file a statutory appeal under Section 107 of TN-GST Act.In conclusion, the court dismissed the main writ petition while preserving the petitioner's rights to file a statutory appeal under Section 107 of TN-GST Act. The court clarified that the rectification application did not meet the criteria for rectifying errors apparent on the face of the record. The judgment highlighted the importance of statutory requirements and the need for errors to be clearly evident for rectification.