TaxTMI 
TaxTMI 
2025 (4) TMI 1152
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....fore us in this intra court appeal. 2. The brief facts necessary for the disposal of the writ appeal are as follows: The appellant/writ petitioner was served with a show cause notice under Section 74 of the CGST/SGST Act dated 5.8.2024 proposing to initiate proceedings under Section 74 (10) of the CGST/SGST Act for the assessment years 2017-2018, 2018-2019, 2019-2020, 2020-2021 and 2021-2022. In the aforesaid notice, the proper officer concluded that, for different assessment years, the appellant/writ petitioner had applied incorrect HSNs, and therefore, the rate of tax applied is incorrect and thus proposed a reassessment finding that there is a wrong application of tax rate at Rs. 21,13,080/- (CGST - Rs. 10,56,540/ - SGST- Rs. 10,56....
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....el relied on the decision of this Court in Joint Commissioner (Intelligence & Enforcement) v. Lakshmi Mobile Accessories [(2025) 171 taxmann.com 214 (Kerala)], wherein it was held by the Division Bench, wherein one of us was a party [DR. A.K. Jayasankaran Nambiar (J)] that the proper officer cannot issue consolidated orders by clubbing into different assessment years for the purpose of determining the liability under Section 74 of the Act. It is further pointed out that the High Court of Karnataka in M/s Bangalore Golf Club (Supra) had taken a view that a composite show cause notice by clubbing different assessment notices cannot be issued. It is further pointed out that the Madras High Court in M/s Titan Company Limited v. Joint Commission....
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....der section 50 and a penalty equivalent to the tax specified in the notice. (2) The proper officer shall issue the notice under sub-section (1) at least six months prior to the time limit specified in sub-section (10) for issuance of order. 8. Sub-section (2) of Section 74 mandates that the notice under sub-section (1) of Section 74 be issued at least six months prior to the time limit prescribed under sub-section (10) for issuance of the order. Turning to sub-section (10) of Section 74, the proper officer is required to issue notice under sub-section (9) within a period of five years from the due date of furnishing the annual return. 9. A cumulative reading of Section 74 (1), (2) and (10) leaves no room for any doubt that ea....
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....oper officer issue a composite show cause notice and then proceed to pass separate orders for each assessment year. We find that while deciding the case Lakshmi Mobiles Accessories (supra) this issue did not fall for our consideration. 11. When we read sub-sections (9) and (10) of Section 74, which specifically refer to " financial year to which the tax not paid or short paid or input tax wrongly availed or utilised relates" while passing the final order of adjudication, it presupposes that independent show cause notice be issued to the assessee for each different years of assessment while proceeding under Section 74. We are constrained to hold so because, as we noted earlier, the assessee can raise a distinct and independent defence to ....
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.... reason would also prompt us to hold that in cases where the assessing officer finds that an assessee is liable to be proceeded either under Section 73 or under Section 74 for different assessment years, a separate show cause notice has to be issued. Still further, since proper officer need to issue a show cause notice prior to 6 months to the time limit prescribed under sub-section (10) of Section 74, if a composite notice is issued, the assessee will be prejudiced inasmuch as the availability of a lesser period to submit a proper and meaningful explanation. This also is a strong indicative factor which would prompt us to hold in favour of the assessee. 13. We find normally a writ petition against the show cause notice is not to be ente....