TaxTMI 
TaxTMI 
2024 (2) TMI 941
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....oner. 3. The Impugned Orders both dated 05.05.2020 for the Assessment Years 2017-2018 & 2018-2019 preceded a Show Cause Notice dated 20.11.2019 bearing reference: GSTIN: 33ALPPS1578K1ZG/2017-2018 under Section 74(1) of the Central Goods & Services Tax Act, 2017 (CGST Act, 2017) and Tamil Nadu Goods and Service Tax Act, 2017 (TNGST Act, 2017). Relevant portion of the Show Cause Notice dated 20.11.2019 reads as under:- "As per the order of the Joint Commissioner (ST) (Intelligence), Erode vide reference 1st cited, your place of business was visited on 27.09.2019 for inspection, and ascertained that your business premises was held under the custody of Tvl. Kotak Mahindra Bank Limited, Coimbatore for their loan recovery procedure under SARFAESI Act. Hence, we could not conduct the inspection to the premises. I summoned you regarding the above matter, you came to office on 09.10.2019 at 6.00 pm and you gave written statement that all the records relating to the assessment year 2017-2018 and 2018-2019 were available inside the Office at the business premises itself. Based on your statement, I requested the bank officials to handover the records relevant to inspection under GST Act....
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....6950 3654900 3654900 7966750 283836 1399109 1399109 30,82,053 TRAN-1-ITC Table-3 Month IGST CGST SGST TOTAL Date of Filing No of days Interest @ 24% IGST CGST SGST July.17 0 0 1083115 1083115 20.08.2017 815 0 0 580431 5,80,431 Total amount of Interest = Rs. 30,82,053/- + Rs. 5,80,431/- =Rs. 36,62,484/- Penalty is also proposed to be levied at 100% on the tax dues as per Section 74(1) of TNGST Act, 2017 Total Tax dues = Rs. 79,66,750 + Rs. 10,83,115 = Rs. 90,49,865.00 @ 100% Penalty due = Rs. 90,49,865.00. Hence, you are requested to pay the amount of Rs. 90,49,865 with interest and Penalty within 30 days from the date of receipt of this notice. Objection if any of the above proposal, you are requested to appear in person on or before 20.12.2019 at 11.00 am at my chamber along with original documents with two sets of Xerox copy and soft copy Failing which, above proposal will be confirmed according to law without further intimation." 4. The show Cause Notice also calculates the interest payable at 24% on the....
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....ve access to any place of business of a registered person to inspect books of account, documents, computers, computer programs, computer software whether installed in a computer or otherwise and such other things as he may require and which may be available at such place, for the purposes of carrying out any audit, scrutiny, verification and checks as may be necessary to safeguard the interest of revenue. 13. It is submitted that sub-clause(2) to Section 71 of the TNGST Act, 2017 contemplates safeguards for the following:- i. Such records as prepared or maintained by the registered person and declared to the proper officer in such manner as may be prescribed; ii. Trial balance or its equivalent; iii. Statements of annual financial accounts, duly audited, wherever required; iv. Cost audit report, if any, under Section 148 of the Companies Act, 2013; v. The income-tax audit report, if any, under Section 44AB of the Income Tax Act, 1961; and vi. Any other relevant record, For the scrutiny by the officer or audit party or the chartered accountant or cost accountant within a period not exceeding fifteen working days from the day when such demand is made, or such furthe....
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....ent, being summoned for cross-examination also, the petitioner was not allowed to cross examine them. It is submitted that if cross-examination was allowed, the petitioner would have established that all the documents for proving that Input Tax Credit on invoices were validly availed for deciding the tax liability. 21. In this connection, the learned counsel for the petitioner has also drawn attention to Paragraph 21 of the counter affidavit filed in support of the first respondent, wherein, it has been wrongly stated that on 08.11.2019 officials from the Intelligence Department verified the records and took with them certain documents and acknowledged the same in GST INS-02. 22. The learned counsel for the petitioner has placed reliance on the following decisions:- i. Commissioner of Income Tax vs. Dharam Pal Prem Chand Limited, MANU/DE/8685/2007; ii. R.W. Promotions Private Limited vs. Assistant Commissioner of Income Tax and Others, MANU/MH/2368/2015; iii. Commissioner of Income Tax vs. S.M. Aggarwal, MANU/DE/7467/2007; iv. Andaman Timber Industries vs. Commissioner of Central Excise, Kolkata-II, MANU/SC/1250/2015; v. State of Kerala vs. K.T. Shaduli Yusuff and Oth....
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....9 and also heard from second respondent on their personal appearance before the authority as per their own show cause notice dated 07.01.2010, the adjudicating authority revoked the order of cross examination of the witness of the second respondent. 30. On a perusal of the allegation made by the petitioner in paragraph 3D and 6F are read together, it would be clear that the petitioner is making false allegations before this Court. In paragraph 3D, no Panchanama was prepared and executed at the time of taking possession by the second respondent submitted the Panchanama on 27.02.2020. Thus, it is very clear that the petitioner is making contradictory statements in the affidavit. 31. It is further submitted that the petitioner is not aware of the movables that are present in the premises. As aforesaid, when the officials of the first respondent inspected the premises of secured asset on 08.11.2019 in the presence of second respondent and after examining the documents, the officials of the first respondent had taken few documents for perusal and then called for the rest of the documents from the petitioner. As they have personally examined the second respondent when they called for p....
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....,115/- 39. In all, a sum of Rs. 90,49,865/- was sought to be denied to the petitioner in the show cause notice that was issued to the petitioner on 20.11.2019. Apart from the input tax credit and transitional credit on the aforesaid amounts, the show cause notice issued also proposed to levy interest under the provisions of the respective GST Enactments for the Assessment Year 2017-18. 40. Denial of transitional credit under the aforesaid provisions of the respective GST Enactments can be justified only if the petitioner did not have unutilised credit of Rs. 10,83,115/- as on 30.6.2017. This would have been reflected in the Returns of the petitioner which the petitioner would have filed before the Commercial Tax Department under the provisions of the Tamil Nadu Value Added Tax Act, 2006. This aspect can be verified by the Department by drawing informations from its archives under the provisions of the Tamil Nadu Value Added Tax Act, 2006. 41. If only such credit viz., transitional credit was not available on 30.06.2017, such transitional credit can be denied. This information can be furnished the petitioner before passing a fresh order. 42. Therefore, before proceeding to deny ....
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....the same in GSTR-2 electronically through the common portal, either directly or from the facilitation Centre notified by the Commissioner, after including therein the details of such other input supplies, if any, required to be furnished under Section 38 (2) of the respective GST enactments. 48. As the registered person, the petitioner would have furnished the details under Section 38 (5) of the respective GST Enactments in form in GSTR-2. Through the common portal after the due date of filing of form GSTR-1. 49. Rules 59 & 60 of the respective GST Enactments as they stood during the period in dispute are reproduced below:-. Rule 59 of the Central Goods and Service Tax Rules, and Tamil Nadu Goods and Service Tax Rules, 2017 Rule 60 of the Central Goods and Service Tax Rules, 2017 and Tamil Nadu Goods and Service Tax Rules, 2017 (1) Every registered person, other than a person referred to in section 14 of the Integrated Goods and Services Tax Act, 2017 (13 of 2017), required to furnish the details of outward supplies of goods or services or both under section 37, shall furnish such details in FORM GSTR-1 for the month or the quarter, as the case may be, electronically through ....
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....ls of outward supplies of goods or services or both under section 37 in FORM GSTR-1, if he has not furnished the return in FORM GSTR-3B for preceding two months; (b) a registered person, required to furnish return for every quarter under the proviso to subsection (1) of section 39, shall not be allowed to furnish the details of outward supplies of goods or services or both under section 37 in FORM GSTR-1 or using the invoice furnishing facility, if he has not furnished the return in FORM GSTR-3B for preceding tax period; (3) The details of outward supplies furnished using the IFF, for the first and second months of a quarter, shall not be furnished in FORM GSTR-1 for the said quarter. [60. Form and manner of ascertaining details of inward supplies.- (1) The details of outward supplies furnished by the supplier in FORM GSTR-1 or using the IFF shall be made available electronically to the concerned registered persons (recipients) in Part A of FORM GSTR-2A, in FORM GSTR-4A and in FORM GSTR-6A through the common portal, as the case may be (2) The details of invoices furnished by an non-resident taxable person in his return in FORM GSTR-5 under rule 63 shall be made available to t....
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....first month of the quarter to the due date of furnishing details using the IFF for the second month of the quarter; (c) for the third month of the quarter, between the day immediately after the due date of furnishing of details using the IFF for the second month of the quarter to the due date of furnishing of FORM (iii) the details of the integrated tax paid on the import of goods or goods brought in the domestic Tariff Area from Special Economic Zone unit or a Special Economic Zone developer on a bill of entry in the month. (8) The Statement in FORM GSTR-2B for every month shall be made available to the registered person,- (i) for the first and second month of a quarter, a day after the due date of furnishing of details of outward supplies for the said month, in the IFF by a registered person required to furnish return for every quarter under proviso to sub-section (1) of section 39, or in FORM GSTR-1 by a registered person, other than those required to furnish return for every quarter under proviso to sub-section (1) of section 39, whichever is later; (ii) in the third month of the quarter, a day after the due date of furnishing of details of outward supplies for the sai....
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....such registered person.;] Eligibility and conditions for taking input tax credit. (c) subject to the provisions of 2 [section 41 or Section 43A], the tax charged in respect of such supply has been actually paid to the Government, either in cash or through utilization of input tax credit admissible in respect of the said supply; and (d) he has furnished the return under section 39: Provided that where the goods against an invoice are received in lots or instalments the registered person shall be entitled to take credit upon receipt of the last lot or instalment: Provided further that where a recipient fails to pay to the supplier of goods or services or both, other than the supplies on which tax is payable on reverse charge basis, the amount towards the value of supply along with tax payable thereon within a period of one hundred and eighty days from the date of issue of invoice by the supplier, an amount equal to the input tax credit availed by the recipient shall be added to his output tax liability, along with interest thereon, in such manner as may be prescribed: Provided also that the recipient shall be entitled to avail of the credit of input tax on payment made by h....
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....sal of input tax credit in the case of non-payment of consideration.- (1) A registered person, who has availed of input tax credit on any inward supply of goods or services or both, but fails to pay to the supplier thereof, the value of such supply along with the tax payable thereon, within the time limit specified in the second proviso to sub-section (2) of section 16, shall furnish the details of such supply, the amount of value not paid and the amount of input tax credit availed of proportionate to such amount not paid to the supplier in FORM GSTR-2 for the month immediately following the period of one hundred and eighty days from the date of the issue of the invoice: Provided that the value of supplies made without consideration as specified in Schedule I of the said Act shall be deemed to have been paid for the purposes of the second proviso to sub-section (2) of section 16: [Provided further that the value of supplies on account of any amount added in accordance with the provisions of clause (b) of sub-section (2) of section 15 shall be deemed to have been paid for the purposes of the second proviso to sub-section (2) of section 16.] (2) The amount of input tax credit ....