TaxTMI 
TaxTMI 
2024 (3) TMI 270
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....the contravention of the provisions of this act or rules made there under to evade tax under this act." 4. The search operation started on 16.11.2023 at 5:30 P.M and continued till 17.11.2023 around 5 AM. During the search operation, documents and other records were inspected and consequently, as per the Petitioner, it was orally and vaguely alleged the Petitioner has evaded GST on its transactions. Further, the statement of the authorized representative of the petitioner was also recorded under duress and coercion. 5. Further, as per the Petitioner he cooperated and furnished all the statutory records maintained in the business premises. 6. As per the Petitioner, he was made to deposit an amount of Rs. 15,06,342 (towards alleged stock variation) and an amount of Rs. 25,00,000 (towards ITC reversal alleged to be illegible) totaling to Rs. 40,06,342 vide FORM GST DRC-03, without any statutory demand being raised by the Respondents and merely on the basis of alleged discrepancy noticed during the search operation. 7. Said amounts were deposited by the Petitioner at 3:10 AM and 3:18 AM, during the course of search operation, in the presence of the Respondents at the premis....
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.... penalty is not leviable, and all proceedings in respect of such notice are deemed to be concluded. 54. This regime is set out in Section 73 of the 2017 Act. 55. Broadly, this regime also applies, where a notice has been issued under sub-section (1) of Section 73, and the proper officer serves a statement containing details of tax not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilized for such periods other than those covered under sub-section (1) of Section 73. 56. The important aspect to be kept in mind, is that the regime given in Section 73 of the Act operates in cases which do not involve fraud or wilful misstatement or suppression of facts to evade tax. 57. In cases which involve one or more of the aforementioned ingredients i.e., fraud, wilful misstatement or suppression of facts to evade tax, pari materia provisions are contained in Section 74 of the 2017 Act, with small variations. 58. In these cases as well, latitude has been given to the person chargeable with tax, to pay monies towards tax, along with interest, based on self-ascertainment, before issuance of notice under subsection (1) ....
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....after, is required to issue an acknowledgement, accepting the payment made by the person, also in the prescribed form i.e., GST DRC-04. 67. This is also required to be done [i.e., the acknowledgement of acceptance of payment] where tax, interest and penalty are ascertained by the proper officer, under Rule 142(1A). ***** ***** ***** 76. The malaise of officials seeking to recover tax dues (in contrast to voluntary payments being made by assesses towards tax dues) during search, inspection or investigation was sought to be addressed by the GST-Investigation, CBIC via Instruction No. 01/2022-2023 dated 25.05.2022. For the sake of convenience, the said instruction is extracted hereafter: "Date : 25 May, 2022 Instruction No. 01/2022-2023 [GST - Investigation] Subject : Deposit of tax during the course of search, inspection or investigation-reg. 1. During the course of search, inspection or investigation, sometimes the taxpayers opt for deposit of their partial or full GST liability arising out of the issue pointed out by the department during the course of such search, inspection or investigation by furnishing DRC-03. Insta....
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....recovery' of tax dues during the course of search or inspection or investigation proceedings. However, there is also no bar on the taxpayers for voluntarily making the payments on the basis of ascertainment of their liability on nonpayment/ short payment of taxes before or at any stage of such proceedings. The tax officer should however, inform the taxpayers regarding the provisions of voluntary tax payments through DRC-03. 5. Pr. Chief Commissioners/Chief Commissioners, CGST Zones and Pr. Director General, DGGI are advised that in case, any complaint is received from a taxpayer regarding use of force or coercion by any of their officers for getting the amount deposited during search or inspection or investigation, the same may be enquired at the earliest and in case of any wrongdoing on the part of any tax officer, strict disciplinary action as per law may be taken against the defaulting officers. (Vijay Mohan Jain) Commissioner (GST-Inv.), CBIC" 77. It appears that this Instruction was issued by the GST Investigation Wing, CBIC, in the backdrop of an order dated 16.02.2021, passed by the Gujarat High Court in the matter of Bhumi Associ....
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.... and 3:18 AM before the search ended and the officers left at 5:00 AM, shows that the deposit was not voluntary and contrary to the CBIC Instruction No. 01/2022-2023 dated 25.05.2022. 14. We are unable to the accept the contention of learned counsel for the respondent that the deposit was voluntary for the reason that there is no material placed on record by respondent to show as to why petitioner would voluntarily deposit the said amount when there was no claim made against the petitioner as on the date of deposit. 15. Therefore, the amounts that were deposited on behalf of petitioner lacked voluntariness. Accordingly, said amount are liable to be returned with interest. 16. Relying upon the decision of a Coordinate Bench of this Court dated 05.12.2023 in W.P. (C) No. 158/2023, titled as 'Neeraj Paper Marketing Ltd. Vs. Special Commissioner, Department of Trade and Taxes, GNCTD & Ors.', learned counsel for the respondents submits that since part of the amount deposited was by debit from the petitioner's Electronic Credit Ledger and the same is to be re-credited to the Electronic Credit Ledger of the Petitioner, no interest is liable to be paid as the amount standing in th....