AI Drafter 
TaxTMI 
TaxTMI 
2025 (7) TMI 1617
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.... a proceeding had been initiated under Section 74 of the said Act on the basis of a show cause dated 29th April 2022 in respect of the tax period April 2019 to March 2020. The said proceeding culminated in the order passed under Section 74 of the said Act dated 20th October 2022. Perusal of the aforesaid order would demonstrate that the petitioner had made voluntary payment upon receipt of the show cause notice which had been accounted for and consequent thereupon, the differential amount of tax, interest and penalty had been levied. The petitioner claims to have preferred an appeal from the aforesaid order under Section 107 of the said Act, which culminated in the order dated 27th December, 2023, whereby the appeal filed by the petitioner stood rejected and the determination confirmed. The petitioner has, however, not challenged the aforesaid appellate order. According to the petitioner since the appellate tribunal is yet to be constituted, the petitioner has not questioned the same. 3. Subsequently, in respect of the self same period, a notice under Section 73 of the said Act had been issued. The petitioner is aggrieved by the inclusion of the claim of ITC availed on inward B2....
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....ies, I notice that the primary contention raised by the petitioner is with regard to the issuance of show-cause notice under Section 73 of the said Act after an order under Section 74 of the said Act in respect of the identical period having been passed. To morefully appreciate the same, the relevant provisions of Section 73 and 74 of the said Act are extracted hereinbelow: "Section 73. Determination of tax [,pertaining to the period up to Financial Year 2023-24,] not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilised 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 utilised for any reason, other than the reason of fraud or any wilful misstatement 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 utilised input tax credit, requiring him to show c....
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.... by person chargeable with tax, determine the amount of tax, interest and a penalty equivalent to ten per cent. of tax or ten thousand rupees, whichever is higher, due from such person and issue an order. (10) The proper officer shall issue the order under subsection (9) within three years from the due date for furnishing of annual return for the financial year to which the tax not paid or short paid or input tax credit wrongly availed or utilised relates to or within three years from the date of erroneous refund. (11) Notwithstanding anything contained in sub-section (6) or sub-section (8), penalty under sub-section (9) shall be payable where any amount of self-assessed tax or any amount collected as tax has not been paid within a period of thirty days from the due date of payment of such tax. "74. Determination of tax [,pertaining to the period up to Financial Year 2023-24,] not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilised by reason of fraud or any wilful-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 wh....
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....payable. (8) Where any person chargeable with tax under sub-section (1) pays the said tax along with interest payable under Section 50 and a penalty equivalent to twenty-five per cent. of such tax within thirty days of issue of the notice, all proceedings in respect of the said notice shall be deemed to be concluded. (9) The proper officer shall, after considering the representation, if any, made by the person chargeable with tax, determine the amount of tax, interest and penalty due from such person and issue an order. (10) The proper officer shall issue the order under subsection (9) within a period of five years from the due date for furnishing of annual return for the financial year to which the tax not paid or short paid or input tax credit wrongly availed or utilised relates to or within five years from the date of erroneous refund. (11) Where any person served with an order issued under sub-section (9) pays the tax along with interest payable thereon under Section 50 and a penalty equivalent to fifty per cent. of such tax within thirty days of communication of the order, all proceedings in respect of the said notice shall be deemed to be c....
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....w-cause appears to have been uploaded in form DRC-01 in compliance of Rule 142 of the WBGST/CGST Rules 2017 (hereinafter referred to as the "said Rules"). Having regard thereto, I am of the view that the aforesaid issue of the show-cause being vague is unsustainable. Independent of the above, I also find that the petitioner chose not to appear before the authorities and make any representation. Only a response to the show cause was filed. Thus, the objection appear to have been taken mechanically without pursuing the same. Consequently, the same is rejected. 10. On the aspect of including ITC availed on account of B2B supply (Including Debit Notes and Amendment) in Table 4(A)(5) of GSTR-3B as noted under point no. 1(I) and 3(M), of the show-cause is concerned, since such issue had already been decided by the authorities pursuant to the show-cause notice issued under Section 74 of the said Act dated 29th April, 2022, I am of the view such issue could not have been included in the subsequent notice and no demand on the basis thereof, could also have been raised simply because the petitioner failed to disclose particulars. Non-disclosure of supporting documents by the petitioner ca....