TaxTMI 
TaxTMI 
2024 (3) TMI 438
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.... for Central Board of Indirect Tax (C.B.I.C.), for the respondents. 3. Vide the impugned order, the 1st respondent has confirmed a demand of Rs..92,160/- (CGST Rs..46,080/- + SGST Rs..46,080/-) towards irregularly availed Input Tax Credit (I.T.C.) on ineligible supplies. Further, the authorities concerned have also confirmed demand of notice towards irregularly availed I.T.C. on common services used for providing taxable services and exempted supplies of Rs..2,34,700/-. In addition, there was also a demand for interest amount of Rs..6,642/- and Rs..39,100/- in terms of Section 50 of the Central Goods and Services Tax Act, 2017 (for short, 'the C.G.S.T. Act') r/w corresponding similar provisions of the Telangana Goods and Services Tax Act, 2017 (for short, 'the T.G.S.T. Act') and Section 20 of the Integrated Goods and Services Tax Act, 2017 (for short, 'the I.G.S.T. Act'). In addition, there was also imposition of penalty in terms of Section 74(9) r/w Section 122(2)(b) of C.G.S.T. Act and the corresponding provision under the T.G.S.T. Act and Section 20 of the I.G.S.T. Act. The period of dispute as regards tax is from July, 2017 to March, 2019. 4. The petitioner herein is a compan....
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.....2021 and after scrutinizing the same, immediately the petitioner cleared the entire tax payable by him in respect of the I.T.C. that was availed by the petitioner wrongly. The petitioner also paid the entire interest amount on 28.10.2021 itself. According to learned counsel for the petitioner, the show-cause notice in the instant case was issued only on 20.04.2022. Therefore, the proceedings drawn by the respondents would get hit by proviso to Section 73(5) and the writ petition to the aforesaid extent deserves to be allowed. He further submitted that the authorities concerned have wrongly initiated proceedings under Section 74 which otherwise would not be sustainable particularly when the petitioner falls within the purview of proviso to Section 73(1) and 73(5) of the C.G.S.T Act. 7. Per contra, Mr. Dominic Fernandes, learned Standing Counsel for Central Board of Indirect Tax, appearing on behalf of the respondents, vehemently contended that the case of petitioner being not a simple wrongful availment of I.T.C., but a deliberate, willful act on the part of petitioner with an intention of evading tax, and therefore, it is a case which would fall squarely within the purview of Sec....
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....and has also paid the relevant interest also up to date. Admittedly, the show cause notice was thereafter has been issued much thereafter on 20.04.2022. 11. At this juncture, it would be relevant to take note of the contents of Section 73 of the C.G.S.T Act. The relevant portion for adjudication of the present writ petition is being reproduced hereunder: "73. Determination of tax not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilized for any reason other than fraud or any willful misstatement or suppression of facts (1) Where it appears to the proper officer that any tax has not been paid or short paid or erroneously refunded, or where input tax credit has been wrongly availed or utilized for any reason, other than the reason of fraud or any wilful mis-statement or suppression of facts to evade tax, he shall serve notice on the person chargeable with tax which has not been so paid or which has been so short paid or to whom the refund has erroneously been made, or who has wrongly availed or utilized input tax credit, requiring him to show cause as to why he should not pay the amount specified in the notice along with interest payable the....
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....ongfully availed I.T.C. at the earliest in order to provide stringent coercive recovery measures including imposition of penalty. A plain reading of Sub-Section (1) of Section 73 gives an inference of the liability of a taxpayer being in respect of (i) any tax that has not been paid or (ii) any tax which is short paid (iii) any erroneously refunded tax (iv) where ITC has been wrongly availed (v) the I.T.C. having utilized for any reason other than fraud or willful misstatement or suppression of facts in order to evade payment of tax. The said by itself would show how exhaustive was Sub-Section (1) of Section 73 and the intentions of the law makers incorporating all those unpaid or wrongly availed tax benefit. 14. Further reading of other Sub-Sections, i.e. Sub-Sections (5) to (8) would again force this Court to draw the only inference, that of, it is this very nature of wrongly availed tax or any other tax which has not been paid or erroneously refunded. In respect of this very category of wrongfully availed or wrongly retained tax from the taxpayer immediately upon them coming to know about it either by his own self-assessment or the tax as ascertained by the proper officer. 15.....