MULTIPLE YEAR ASSEMENT IN ONE ORDER U/S 73

[FARIDUDDIN AHMAD]

Sir Itnagar CGST Office Conducted Audit of the F.Y-2019 To 2023 Under the Provisions of GST Law by issuing one ADT 01. Auditor Provided the preliminary audit objection on discrepancy observed during the course of audit reply to which was Filed. Subsequently auditor prepared final audit report and served along with one SCN u/s 73 as well as one DRC 01 for multiple F.Y. (2019 to 2023) on registered email address . reply To The Scn Was Also Submitted. Finally Auditor Passed One Order U/s 73 for multiple F.Y (2019 To 2023) and Send On Email. No DRC-07 Has Been Send on Email. SCN, DRC-01 And Order, DRC-07 Is Not Uploaded On GSTIN Portal. My Query Is Can Single Order U/S 73 For Multiple F.Y Is legally vaild order or void order and how to proceed further for legal remedy without being order available on GSTIN portal.

[KASTURI SETHI]

(i) Pl. peruse Karnataka High Court Orders dated 30.9.24 and 07.8.24.TMI ID 761532 and 759517 respectively.

(ii) In my view, the department will challenge both orders in Hon'ble Supreme Court. Still the appeal period is not over. The appeal period is of six months.

(iii) The department has been issuing single SCN for multiple years since the inception of Central Excise Department.

(iv) Was personal hearing fixed or not ?

(v) Have you filed reply to the SCN or  not ?. 

[VENU K]

In my humble opinion Sec 73 notices cannot be issued for multiple financial years because such an interpretation would make Sec 73(3) as well as 73(10) otiose. Such a construction shall not be permitted by any Court of Law.

Please refer judgment of the Hon’ble Madras High Court in the case of M/s. Titan Company Ltd. vs. Joint Commissioner of GST - 2024 (1) TMI 619 - MADRAS HIGH COURT. In this case the Madras High Court, while addressing a similar issue, relied on the Hon’ble Supreme Court’s decision in State of Jammu and Kashmir and Others vs. Caltex (India) Ltd. - 1965 (12) TMI 125 - SUPREME COURT. The Hon’ble Apex Court held that where an assessment encompasses different assessment years, each assessment order can be distinctly separated and must be treated independently. The same logic was followed in Bangalore Golf Club Vs Assistant Commissioner of Commercial Taxes (2024 (10) TMI 116 - KARNATAKA HIGH COURT)

Further, failure to upload DRC 01 under Sub Rule 1(a) of Rule 142 as well as failure to upload GST DRC 07 under Sub Rule 5 of Rule 142 will make the assessment illegal due to failure to follow the due process as laid down by the law.

When Parliament in its wisdom has laid down a particular procedure, the Officer has no business or authority to substitute such process. This will amount to legislation by the Officer which cannot be permitted.

Ignoring an order, even when it is illegal, could render the taxable person without a remedy. So it is better to request the Adjudicating Officer to upload the same in the portal and may be file an appeal in paper format so that doors to further proceedings are not shut.

[KASTURI SETHI]

As per Section 169 (1)(c) of CGST Act, sending Order via email address is also legally valid method of service. It is also one of the six modes of service mentioned therein. 

[Ganeshan Kalyani]

I agree with the view of both the experts.

[VENU K]

Further to my earlier reply I would like to add the following for further clarity on the issue.

Instruction No. 04/2023-GST dated 23rd November 2023 issued by GST Policy Wing.

Paragraph 5.

5. The proper officers are accordingly directed to ensure that summary of the notices issued under section 52 or section 73 or section 74 or section 122 or section 123 or section 124 or section 125 or section 127 or section 129 or section 130 of CGST Act are served, electronically on the portal in FORM GST DRC-01. Also, they should ensure that summary of the order issued under section 52 or section 62 or section 63 or section 64 or section 73 or section 74 or section 75 or section 76 or section 122 or section 123 or section 124 or section 125 or section 127 or section 129 or section 130 of CGST Act is uploaded electronically on the portal in FORM GST DRC-07.

The above Instruction clearly mandates issue of DRC 01 as well as DRC 07 electronically in the portal reiterating strict compliance to Rule 142(1).

The law mandates service of two things together ie. Alongwith . When the law mandates service of two documents together, the service of one cannot be deemed as a proper service. Even uploading it after few days cannot be a proper compliance. So the entire assessment is illegal in my opinion. Deviation from procedures are fatal to demand. The duty of adjudicating officer is not to dispense justice. His duty is to just implement the law as per the procedures mandated by law.

When you order Masaladosa the waiter should serve masala dosa, sambaar and chutney together. He cannot bring masaladosa and say “Sir, chutney and saambaar are getting ready, you please start eating. I shall bring the other two as soon as they are ready.” It is a different matter that Vada might come as an unsolicited accompaniment which can always be send back politely.

AI Summary

Validity of combined assessments questioned due to mandatory portal notices and upload requirements affecting procedural legality. The core issue is whether a single assessment order for multiple financial years is procedurally valid given statutory preference for year wise proceedings and whether failure to upload FORM GST DRC 01 and FORM GST DRC 07 on the portal (despite email service) invalidates the assessment; remedies include seeking portal upload and filing appeal in paper form to preserve rights.