SCN due date S. 73

[Akash Dhiran]

As per S. 73, notice is to be issued 3 months prior to order.

For FY20-21, the last date to issue order u/s 73 is 28.02.2025.

View above, what is the last date for SCN. is it 30.11.2024 or 28.11.2024 ?

[KASTURI SETHI]

 Last date for issuance of SCN  is 30.11.24.

[VENU K]

In my opinion all such calculations should be based on the following judgment of Supreme Court

M/S. SAKETH INDIA LIMITED AND OTHERS Vs. M/S. INDIA SECURITIES LIMITED - 1999 (3) TMI 591 - SUPREME COURT

Where the Court relied on another decision and held as below:

Similar contention was considered by this Court in the case of Haru Das Gupta vs. State of West Bengal 1972 (2) TMI 88 - SUPREME COURT wherein it was held that the rule is well established that where a particular time is given from a certain date within which an act is to be done, the day on that day is to be excluded; the effect of defining period from such a day until such a day within which an act is to be done is to exclude the first day and to include the last day. In the context of that case, the Court held that in computing the period of three months from the date of detention, which was February 5th, 1971, before the expiration of which the order or decision for confirming the detention order and continuing the detention thereunder had to be made, the date of the commencement of detention, namely, February 5th has to be excluded; so done, the order of confirmation dated May 5th, 1971 was made before the expiration of the period of three months from the date of detention.

[Amit Agrawal]

Interesting query, having huge ramifications all over India!!!

As per Section (35) of THE GENERAL CLAUSES ACT, 1897, “month” shall mean a month reckoned according to the British calendar. And Section 9 of said act reads as follows:

"Commencement and termination of time.—(1) In any Central Act  or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word “from”, and, for the purpose of including the last in a series of days or any other period of time, to use the word “to”." 

At-least three months prior to 28.02.2025 is 28.11.2024 & NOT 30.11.2024, IMHO. 

The date 28.02.2025 needs to be excluded while calculating ‘At-least three months prior to’. This is because before the word ‘to’, there is another word by ‘prior’. Hence, above-produced Section 9 (i.e. including the last day in the period of time of three months) cannot be applied to given situation.

In other words, the word ‘prior to’ is NOT equivalent to the word ‘to / till’ while applying said Section 9 in my view. 

This is despite the fact that ‘within three months from’ 28.11.2024, 29.11.2024 & 30.11.2024 (i.e. all three days) lies on 28.02.2025. There lies the real conundrum, doesn't it?  

This is because At-least three months prior to 01.03.2025 is 01.12.2024 & not 30.11.2024 or 02.12.2024 and At-least three months prior to 27.02.2025 is 27.11.2024 & not 28.11.2024, IMHO.

Important Note/s: Besides above ground challenging validity of SCN itself, please ensure proper grounds defending your case on merits as well. 'Challenging validity of SCN itself' should not be sole defense. It will be interesting to see how question of law gets ultimately settled on the subject issue raised. And if quantum involved is substantial, one may directly approach jurisdictional HC by way of writ petition challenging validity of SCN itself (i.e. even before adjudication of original adjudicating authority). 

These are ex facie views of mine and the same should not be construed as professional advice / suggestion or recommendation.

[Amit Agrawal]

It would be safe to presume that Tax Dept. will use Section 9 of THE GENERAL CLAUSES ACT, 1897 stating that Section 73(2) of the CGST Act, 2017 is the 'time termination provision' and the words 'prior to' used therein is nothing but 'to or till or upto' while reading a 'time termination provision'. 

Interesting time ahead!!

These are ex facie views of mine and the same should not be construed as professional advice / suggestion or recommendation.

[Amit Agrawal]

Dear Professional Colleagues,

Issue raised here is interesting!

One can find numerous case-laws where time-limitation in 'time commence clauses' w.r.t the words' within' or 'from' is discussed and that question of law is fairly settled.

But, I am unable to find rulings where where time-limitation in 'time termination clauses' is the issue involved.

As I understand that it is very good possibility that Section 9 of the general clauses act can be applied in subject situation under discussion here, though I am not sure. 

I explained my conundrum in earlier post too.

Hence, I would be grateful if you can quote some case-laws where 'time termination clauses' read with Section 9 of the general clauses act is discussed. 

Requested accordingly. 

[Sadanand Bulbule]

Dear Sri. Amit ji

Hope the following ruling might be useful in the present context of Section 9 of the General Clauses Act:

2024 (6) TMI 111 - GAUHATI HIGH COURT - SURENDRA STEELS PVT. LTD. VERSUS THE UNION OF INDIA, THE PRINCIPAL COMMISSIONER CENTRAL GOODS AND SERVICE TAX AND CENTRAL EXCISE GUWAHATI, THE ASSISTANT COMMISSIONER CENTRAL GOODS AND SERVICE TAX DIVISION I, THE SUPERINTENDENT GOODS AND SERVICE TAX AND CENTRAL EXCISE RANGE -1A GUWAHATI.

 

[KASTURI SETHI]

SHRI RAM PLY PRODUCT Versus ADDITIONAL COMMISSIONER, GRADE 2 APPEAL STATE TAX, SITAPUR - 2023 (5) TMI 559 - ALLAHABAD HIGH COURT

 

[KASTURI SETHI]

(i) The General Clause Act comes into effect only when any Act is repealed. and not on regular basis.

For example : Central Excise Act, Service Tax Law (Finance Act, 1994) etc.(Case laws are easily traceable.)

(ii) The present query pertains to CGST Act and not to the repealed Act. Hence the time limitation is to be reckoned as per CGST Act and not as General Clauses Act.

(iii) If one month has thirty-one days, it cannot be treated as 30 days for calculation of time limit for issuance of SCN or filing an appeal.

[KASTURI SETHI]

Section 73 (2) talks of three months and NOT days. The period of three months can work out to 90, 91 or 92 days based on the above judgement of Allahabad High Court. In the given scenario in the query, the deadline for issuance of SCN  works out to 30.11.24. An SCN could be issued up to 30.11.24 or prior to that date and but not after that date. If issued on 01.12.24, that will be time barred.

[KALLESHAMURTHY MURTHY K.N.]

Dear Sir, 

I have also learned that some State Adjudication Authorities are in such confusion. But it should be counted with calendar months not days. I concur with Bulbule Sir and Sri Kasturi Sethi Ji. 

[KASTURI SETHI]

Dear Sh.Kaileshamurthy murthy ji,

Sir, Thank you very much for your support.

AI Summary

Debate on GST Show Cause Notice deadline for FY 2020-21 under Section 73: November 28 or 30, 2024? A discussion on the Goods and Services Tax (GST) forum revolves around the deadline for issuing a Show Cause Notice (SCN) under Section 73, which requires issuance three months prior to the order date. The deadline for the fiscal year 2020-21 is debated to be either November 28 or November 30, 2024. Contributors reference legal interpretations, including Supreme Court judgments and the General Clauses Act, to argue the correct calculation method. The consensus leans towards November 30, 2024, as the deadline, emphasizing the importance of understanding time calculations in legal contexts.