TaxTMI 
TaxTMI 
2023 (12) TMI 291
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....claims that his statement was recorded at about 11:30 pm on 18.10.2022 and he was compelled to agree to reverse the ITC in respect of certain suppliers whose registration were stated to be cancelled. The petitioner claims that the petitioner's statement as well as the reversal of ITC, was done under duress and while the petitioner was effectively under the control and supervision of officers of the visiting team. The petitioner also claims that the petitioner was under the stress of interrogation as the inspection was continuing from 4:00 pm, earlier that day. The petitioner also claims that although the petitioner had filed FORM GST DRC-03, there was no acknowledgement of receipt by the Department by issuing FORM GST DRC-04. 3. The petitioner also claims that the inspection conducted on 18.10.2022 was illegal as the authorization for the same [(FORM GST INS-01 dated 18.10.2022)] was issued without mentioning any specific reason for the same. 4. The first and foremost question to be examined is whether the inspection conducted by the Delhi GST Authorities was illegal for want of proper authorization. 5. According to the petitioner, the inspection / search conducted on 18.1....
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.... and rules made thereunder. OR • in exercise of the powers conferred upon me under subsection (2) of section 67 of the Act, I authorize and require you to search the above premises with such assistance as may be necessary, and if any goods or documents and/or other things relevant to the proceedings under the Act are found, to seize and produce the same forthwith before me for further action under the Act and rules made thereunder. Any attempt on the part of the person to mislead, tamper with the evidence, refusal to answer the questions relevant to inspection / search operations, making of false statement or providing false evidence is punishable with imprisonment and /or fine under the Act read with section 179, 181, 191 and 418 of the Indian Penal Code. Given under my hand & seal this ............ day of ......... (month) 20.... (year). Valid for ...... day(s). Seal Place Signature, Name and designation of the issuing authority Name, Designation & Signature of the Inspection Officer/s (i) (ii)" 7. In the present case, respondent no. 3 had issued the authorization dated 18.10.2022 ....
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....nt recorded on 18.10.2022, immediately after the search and therefore, he is precluded from disputing that he had voluntarily reversed the ITC amounting to Rs.22,14,226/-. Mr. Aggarwal referred to the decision of the Coordinate Bench of this Court in RCI Industries and Technologies Ltd. though its Director Rajiv Gupta v. Commissioner, DGST Delhi & Ors.: 2021 SCC OnLine Del 3450. 12. Second, Mr. Aggarwal contended that on the date of the search, there was a balance of Rs.84,19,466/- in the ECL of the petitioner. According to the respondents, the petitioner had availed of the inadmissible ITC to the extent of Rs.2,39,40,871/-. Thus, if the petitioner was under any coercion, he would have been compelled to deposit the entire amount lying in his ECL. 13. It is relevant to refer to the statement of the petitioner recorded on 18.10.2022. The relevant extract which is relied upon by the respondent is set out below: "13. That the visiting team has informed that the following inward supply dealers have been cancelled suomoto from the date of registration: - 1. M/s. S. R. Enterprises, GSTN: 07AAFHS2748C1Z8 (1,67,310) 2. M/s N N Polymers, GSTN:07AMPS2298F1ZV (....
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.... such tax or the tax as ascertained by the proper officer and inform the proper officer in writing of such payment. (6) The proper officer, on receipt of such information, shall not serve any notice under sub-section (1) or, as the case may be, the statement under sub-section (3), in respect of the tax so paid or any penalty payable under the provisions of this Act or the CGST Rules made thereunder. (7) Where the proper officer is of the opinion that the amount paid 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" 17. The scheme of Sub-sections (5), (6) and (7) of Section 74 of the DGST Act are also similar except that the taxpayer is also required to pay 15% of the tax as penalty. 18. If the tax is not paid on self-ascertainment basis, the assessee cannot be extended the benefit of Section 73(6) of the DGST Act or Section 74(6) of the DGST Act. In the present case, the petitioner has stoutly disputed that the reversal of ITC was voluntary. In cases where the payment made during search is not vol....