2025 (2) TMI 362

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....n assessment should not be carried out in relation to short payment of tax etc. Notice was issued under Section 73 (1) r/w Rule 142 of the APGST Rules. 2. The aforesaid notice, is challenged by the petitioner in the present Writ Petition. 3. The contention of the petitioner, as enunciated by Sri P. Karthik Ramana is as follows: Section 73 (10) of the APGST Act, stipulates that the assessment order, in relation to any assessment year, would have to be issued within three years from the due date for furnishing of annual return for the said financial year. Section 73 (2) of the APGST Act stipulates that the notice under sub-section (1) which initiates the assessment proceedings, would have to be issued at least three months prio....

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.... the provisions of Section 73 (2) of the GST Act, are mandatory. He makes this submission on the ground that the word used in Section 73 (2) is "shall" and the same would have to be treated as a mandatory requirement. He would also contend that the legislature, in its wisdom, had determined that there should be a minimum period available to the tax payer to set out its case in the case of any show cause notice being issued in an assessment proceeding. He would draw the attention of this Court to Section 75 of the GST Act, which has certain inherent safeguards such as the requirement of a personal hearing and the facility of seeking adjournments thrice before a tax payer can be required to compulsorily attend before the authorities. He would....

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....bed is three months (as contrasted from 90 days) from a specified date, the said period would expire in the third month on the date corresponding to the date upon which the period starts. As a result, depending upon the months, it may mean 90 days or 91 days or 92 days or 89 days. 8. On this basis, the Hon'ble Supreme Court held that the petition filed, on 11.03.2008, was well in time and was not barred by limitation. 9. The Hon'ble Supreme Court, while considering this issue and after noticing that Section 3 (35) of the General Clauses Act, 1897 defines a "month" as meaning a month reckoned as a British calendar, has also noted the Judgment of the House of Lords in Dodds vs Walker. The House of Lords while considering the period with....

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....the GST Act. 11. The next issue that remains before this Court is whether the delay of two days in issuing the said notice can be condoned or whether the issue is not relevant as the provision is only directory. 12. As pointed out by the learned counsel, the GST Act, has put in place certain protections for taxpayers. One of the primary protections is that orders cannot be passed against the taxpayers, beyond the periods stipulated in the Act. It is settled law that these periods of limitation are mandatory and not orders can be passed beyond the periods set out in the Act. In such a situation, it would be difficult to hold that the stipulation as to the period of initiation, of such proceedings, by issuance of a show cause notice, wo....