TaxTMI 
TaxTMI 
2024 (6) TMI 1258
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....ntra-Court appeal by the unsuccessful writ petitioners is directed against the order dated 14th June, 2023 in W.P.A. 11167 of 2023. The main relief sought for in the writ petition was to refund a sum of Rs. 30,00,000/-, which the appellants would allege was forced to be paid by them under the threat of arrest, coercion and undue influence on 22nd March, 2023. The writ petition was dismissed on the ground that the allegation made by the appellants that there was no proper authorization in INS-01 was a false statement since the revenue, during the course of argument, had produced a copy of the INS-01 dated 12th June, 2023. Therefore, the Court was not inclined to entertain the writ petition. 2. Aggrieved by such order, the appellants have fi....
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....rtment. In any event, this being a question of fact, cannot be adjudicated in a writ petition. 8. Mr. Maiti, learned Senior Standing counsel for the department submitted that the investigation is complete and the department is in the final stages of issuance of a show-cause notice. Therefore, this issue as to the validity of the search as to whether there was proper authorization etc. can be agitated by the appellants in the reply to the show-cause notice, which is to be issued by the department. 9. The main prayer sought for in the writ petition was to refund a sum of Rs. 30,00,000/-, which according to the department, has been voluntarily paid by the appellants. The issue would be as to how the Court will test as to whether the payment ....
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....should be against an ascertainment of their liability on non-payment/short payment. Admittedly, in the instant case, such ascertainment has not taken place and there was no intimation given to the appellants regarding non-payment or short payment of taxes. 12. The issue as to how the matter has to be dealt with when there is an allegation that the assessee was coerced to effect payment of tax during the course of search or inspection was subject-matter of consideration in several decisions and we may refer to the decision in the case of Vallabh Textiles Vs. Senior Intelligence Officer reported in [2022] 145 taxmann.com 596 (Delhi), wherein it has been held that where payment made during such proceeding for which acknowledged was not issued....
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....ed to have been made by the appellants/assessees voluntarily. 16. The next aspect is whether the circumstances would indicate as to whether the payment was voluntary or otherwise. The Form GST INS-02 is dated 22nd March, 2023 in the preamble it has been stated that the search under sub-section (2) of Section 67 was conducted by the concerned officer viz. the Inspector (Anti Evasion), Anti Evasion Unit, Haldia CGST & CX Commissionerate alongwith their officer on 22nd March, 2023, which ended at 18:30 Hrs. The Panchanama, which was recorded by the very same officer on 22nd March, 2023 records that the entire search proceedings concluded at about 22:45 hours and the officers left the premises at about 22:50 hours. 17. Thus, it is shown that ....
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.... 25th May, 2022. 20. Be that as it may, the facts clearly show that the payment of Rs. 30,00,000/- could not have been said to be voluntary as it was done during the course of search and the search as per the recording in the Panchanama is stated to have completed after about two hours after the appellants had effected the payment. 21. Therefore, we are of the view that the amount of Rs. 30,00,000/- has to be returned to the appellants and cannot be retained by the department any longer, more particularly, when there was no acknowledgement given in GST DRC - 04. 22. As pointed out earlier, the aspect as to the validity of the search, whether the authorization in GST INS-01 was validly issued, whether it was signed by the concerned person....
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....disputed question of fact as to whether the payment was made under coercion or voluntarily made may be a disputed question of fact. Nonetheless, the surrounding circumstances has to be taken note of with particular reference to the facts and circumstances of each case. 24. In the preceding paragraphs, we have recorded our opinion that the payment of tax during the course of search i.e. even before the search could be completed cannot be at any stage of imagination to be treated to be a voluntary payment. Furthermore, it is an admitted case that the department has not issued any receipt under GST DRC-04. 25. For the above reasons, the appeal along with the connected application (I.A. No. CAN 1 of 2023) are allowed. The order passed in the ....