TaxTMI 
TaxTMI 
2022 (4) TMI 823
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....tution of India calling for the records pertaining to the petitioner's case and after going into the validity and legality thereof be pleased to quash and set aside the impugned show cause notice dated 14.03.2022; (b) Your Lordships be pleased to issue a writ of mandamus or any other appropriate writ in the nature of mandamus ordering and directing the respondents to forthwith refrain from taking any further steps or proceeding pursuant to or in implementation of the impugned notice dated 14.03.2022 issued by respondent No.3; (c) That pending the hearing and final disposal of the above petition, this Hon'ble Court be pleased to, stay the effect and operation of impugned notice dated 14.03.2022; (d) An ex-parte ad-interim relief in terms of prayer (c) above may kindly be granted; (e) Costs of the petition be provided for; and (f) Such other and further order or orders as may be deemed just and proper in the facts and circumstances of the present case may kindly be granted." 4. The facts giving rise to this writ application may be summarized as under: 5. The writ applicant has received an intimation of the tax ascertained as being pa....
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.... of Rs. 14,06,55,810/-. The replies submitted by you and while looking at the system generated auto populated 2-A and 8-A by showing purchase of Rs. 441,25,75,002/- from ASTERPETAL TRADE & SERVICES PRIVATE LIMITED GSTN 24AANCA7754P1ZX you have received input tax credit of Rs. 6,42,60,812/- SGST and Rs. 6,42,60,812/- CGST. And from MANMISH TRADERS PRIVATE LIMITED GST NO. 24AAGCM6660D2ZL showed purchase of Rs. 41,66,06,984/- and claimed tax credit of Rs. 60,67,092/- SGST and Rs. 60,67,092/- CGST. And as mentioned above in aggregate you showed a purchase of Rs. 4,82,91,81,986 from both the supplier and have claimed Input Tax Credit of Rs. 7,03,27,905/SGST and Rs. 7,03,27,905/- CGST aggregating to Rs. 14,06,55,810/-. Above referred both the vendor's business details and GST registration number detail is as follows:- (i) ASTERPATEL TRADE & SERVICES PRIVATE LIMITED GSTN24AANCA7754P1ZX (Cancelled suo-moto) Date of Cancellation 31.03.2019 (The effective date of cancellation of your registration is 25.01.2018. In case, Registration has been obtained by means of fraud, willful misstatement or suppression of facts.) (ii) MANMISH TRADERS PRIVATE LIMITED GST NO 2411GC....
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..../DECISION: - Thus, as shown below, even though you were not eligible to claim input tax credit, you have obtained and have not paid input tax credit. Total payable tax 140655810 Interest 67514788 Penalty 140655810 Total 348826408 DETAILS OF PAYABLE TAX PAYABLE TAX INTEREST PENALTY PENALTY TOTAL CGST 70327905 33757394 70327905 174413203 SGST 70327905 33757394 70327905 174413203 TOTAL 140655810 67514788 140655810 348826406 Thus, you are not eligible to claim Input Tax Credit of Rs. 7,03,27,905/for SGST and Rs. 7,03,27,905/- for CGST. And interest on the said amount of Rs. 6,75,14,788/- remains recoverable from you under the provision of section 50 of Gujarat Goods and Services Tax Act, 2017. Accordingly, it is informed to you to repay the above amount under section 74(8) of GST ACT within 15 days via DRC-03. In case if you wish to provide any explanation or clarification same can be done by 11.04.2022 along with supporting documents / evidence. If you fail to produc....
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....allenged by way of a writ application. Mr. Sharma would submit that if the writ applicant wants to ignore the intimation in Form GST DRC - 01, then he may do so, but, thereafter, a show cause notice under sub-section (1) of Section 74 of the Act would be issued. Once a show cause notice is issued, then the regular assessment proceedings would be undertaken and the final liability would be determined and fixed accordingly. 11. In such circumstances referred to above, Mr. Sharma prays that there being no merit in the present writ application, the same may be rejected. • ANALYSIS: 12. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether we should quash and set aside the notice of intimation of tax issued by the Assistant State Tax Commissioner, Ghatak - 3, Ahmedabad, in Form GST DRC - 01. 13. Before adverting to the rival submissions canvassed on either side, we must look into Section 74 of the Act, 2017. Section 74 reads thus: "74. Determination of tax not paid or short paid or erroneously refunded or input tax credit wrongly availed or u....
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....id under sub-section (5) falls short of the amount actually payable, he shall proceed to issue the notice as provided for in sub-section (1) in respect of such amount which falls short of the amount actually payable. (8) Where any person chargeable with tax under sub-section (1) pays the said tax along with interest payable under section 50 and a penalty equivalent to twenty-five percent. of such tax within thirty days of issue of the notice, all proceedings in respect of the said notice shall be deemed to be concluded. (9) The proper officer shall, after considering the representation, if any, made by the person chargeable with tax, determine the amount of tax, interest and penalty equivalent to ten percent of tax or ten thousand, whichever is higher, due from such person and issue an order. (10) The proper officer shall issue the order under sub-section (9) within a period of five years from the due date for furnishing of annual return for the financial year to which the tax not paid or short paid or input tax credit wrongly availed or utilised relates to or within five years from the date of erroneous refund. (11) Where any person served with ....
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....and Form GST DRC - 03 resply. 17. The Form GST DRC - 01A is in two parts : Part A and Part B. The same reads thus: "FORM GST DRC-01A Intimation of tax ascertained as being payable under section 73(5)/74(5) [See Rule 142 (1A)] Part A No.: ........... Date:......... Case ID No. To GSTIN................................. Name................................. Address.............................. Sub.: Case Proceeding Reference No..................- Intimation of liability under section 73(5)/section 74(5) - reg. Please refer to the above proceedings. In this regard, the amount of tax/ interest/penalty payable by you under section 73(5)/74(5) with reference to the said case as ascertained by the undersigned in terms of the available information, as is given below: Act Period Tax CGST Act SGST/UTGST Act IGST Act Cess Total ....
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....ils of show cause notice, if payment is made within 30 days of its issue Reference No. Date of issue 6. Financial Year 7. Details of payment made including interest and penalty, if applicable. (Amount in Rs.) Sr.No. Tax Period Act Place of supply (POS) Tax /Cess Interest Penalty, if applicable Others Total Ledger utilized (Cash / Credit) Debit entry no. Date of debit entry 1 2 3 4 5 6 7 8 9 10 11 12 8. Reasons, if any- << Tex box>> 9. Verification - I hereby solemnly affirm and declare that the information given hereinabove is true and correct to the best of my knowledge and belief and nothing has been concealed therefrom. Signat....
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....e same reads thus: "FORM GST DRC - 01 [See rules 100(2) & 142(1)(a)] Reference No.:.............. Date:............. To ..................GSTIN / Temp. ID ................. Name ................. Address Tax Period : ........... F.Y. .......... Act-Section/sub-section under which SCN is being issued SCN Reference No........ Summary of Show Cause Notice (a) Brief facts of the case: (b) Grounds: (c) Tax and other dues: (Amount in Rs.) Sr. No. Tax rate Turnover Tax period Act POS (Place of Supply) Tax Interest Penalty Free Others Total From To 1 2 3 4 5 6 7 8 9 10 11 12 13 Total ........................... Signature Name........................... Designation................... Jurisdiction................... Address......