TaxTMI 
TaxTMI 
TaxTMI 
2025 (8) TMI 68
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....ned SCN whereby the Respondent has demanded a payment of Rs. 5,63,52,147/- as tax along with Rs. 4,22,64,110/- towards interest and Rs. 56,35,214/- towards penalty in respect of the tax period April 2020 - March 2021. 4. The present petition arises out of the following two major aspects that require the consideration of this Court: a. Whether the impugned SCN was issued to the Petitioner within the period of limitation, as prescribed under Section 73 of the Central Goods and Service Tax Act, 2017 (hereinafter, 'the CGST Act')? b. Whether adequate opportunity has been afforded to the Petitioner for filing a reply with respect to the impugned SCN and for participating in the personal hearings thereafter? I(A). Brief Facts 5. The Petitioner is a company registered under the Companies Act, 1956 and is engaged in the business of providing Direct-To-Home (DTH) broadcasting services. The Petitioner company is registered under the Central Goods and Service Tax Act, 2017 (hereinafter, 'the CGST Act') vide GSTIN 07AAGCS9294M1ZH. 6. Vide the impugned SCN and the consequent impugned order issued by the Respondent-Department, a demand was raised upon the Petitioner on the ground that th....
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....d order has been raised by the Respondent-Department without jurisdiction and beyond the prescribed limitation period. Hence, the same is liable to be set aside. i. To support this contention, the Petitioner has relied upon Notification No. 40/2021 dated 29th December, 2021, read with Rule 80(1) of CGST Rules, 2017, wherein the last date for furnishing of returns for FY 2020-21 was extended till 28th February, 2022. ii. Therefore, the stand of the Petitioner is that the period for initiation of any proceedings under Section 73(2) read with Section 73(10) of the CGST Act with respect to FY 2020-21 came to an end on 28th November, 2024. iii. Emphasis has been laid by the Petitioner on Section 73(10) of the CGST Act, while submitting that a wrongly availed ITC can only be challenged within three years of such wrongful availment, provided that a show cause notice is issued three months prior to the expiry of the said three years. iv. It is further urged on behalf of the Petitioner that in the present case, the three year period for passing the impugned order expired on 28th February, 2025 and the impugned SCN was issued on 30th November, 2024, when it should have been issued pr....
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....ioner missed the personal hearing scheduled for 27th January, 2025, it is submitted that on 21st February, 2025, the Petitioner sent an additional reply to the impugned SCN and once again, sought an opportunity for personal hearing. However, again, due to the glitch in the GST portal, despite selecting 'Yes' by default, the printed form shows as 'No' for the personal hearing option. iv. Reliance has also been placed upon the order passed by this Court in M/s. Sree Ananta Exim vs. Union of India & Ors., W.P. (C) No. 10424 of 2014 wherein while dealing with an order passed under Section 73 of the CGST Act, the Court remanded the matter to the Adjudicatory Authority to afford the Petitioner therein an opportunity of personal hearing. In the said case, similar to the instant case, due to a glitch in the system, the tax payer was not permitted to select the option of personal hearing. III. Per Contra: Submissions on behalf of Respondent-Department 15. It is submitted on behalf of the Respondent-Department that the impugned order issued under Section 73 of the CGST Act is an appealable order under Section 107 of the CGST Act. Hence, it is submitted that the Petitioner shall be direct....
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....led on 27th January, 2025. Thereafter, the Petitioner filed an additional reply dated 21st February, 2025 whereby no opportunity of personal hearing was sought by the Petitioner. iii. With respect to the argument pertaining to the glitch in the GST Portal raised by the Petitioner, it is submitted by the Respondent-Department that during their course of arguments before this Court on 24th April, 2025, the Petitioner pointed that there is a glitch on GST portal because of which the assessee is constrained to tick 'no' to the personal hearing in the form. However, a perusal of the contents of reply dated 21st February, 2025 would show that no opportunity of personal hearing was sought by the petitioner. Hence, it is the case of the Respondent-Department that the Respondent has given suitable opportunities for personal hearing to the Petitioner. IV. Analysis & Findings 18. Heard the parties. The Court has also perused the written submissions submitted on behalf of the parties. IV(a) Whether the impugned SCN was issued to the Petitioner within the period of limitation, as prescribed under Section 73 of the CGST Act? 19. Under the Scheme of Section 73 of the CGST Act, whene....
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....ard in a proper manner. Thus, the time period between issuance of the show cause notice and the outer limit for passing of the order should be at least three months. 25. The statutory intent behind providing this gap of 3 months can be interpreted to arise from a further reading of Section 73, CGST Act wherein, Section 73(3), CGST Act contemplates the service of a statement upon the noticee, giving all the details of the demand proposed to be raised. Further, under Section 73(5), CGST Act, the noticee has the option of paying the tax by doing a self-assessment and if such amount is paid within 30 days of the issuance of the show cause notice under Section 73(1), CGST Act, no penalty would be payable by the noticee. 26. Additionally, the noticee is also entitled to give a representation in response to the show cause notice issued and thereafter, only once such representation is duly considered, an order under Section 73(10), CGST Act, shall be passed. 27. In the light of this background, the following decisions which have been cited by the ld. Counsels for both parties in the present case are considered by this Court: A. State of Himachal Pradesh and Anr. v. Himachal Techno Eng....
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....ch as the giving of a notice, the general rule is that the period ends on the corresponding date in the appropriate subsequent month irrespective of whether some months are longer than others. To the same effect is the decision of this Court in Bibi Salma Khatoon v. State of Bihar. 18. Therefore when the period prescribed 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." B. M/s Cotton Corporation of India v Assistant Commissioner (ST) (Audit) (FAC), 2025 SCC Online AP: i. The decision of the Supreme Court in Himachal Techno Engineers (Supra) was followed in this case where the Court held that a delay of two days in issuing a show cause notice under the GST Act would not be liable to be condoned. The Court held that the period under Section 73(2) of the GST Act is mandatory. The relevant paragraphs of the said judgment are extracted herein below: "10. The aforesaid Judgments clearly laid down the principle that, when a period, available for a certain....
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....all the submissions made by the concerned parties, this Court is of the opinion that it is not in dispute that the last date for filing of returns in terms of Rule 80(1)(A) of the CGST Rules was extended till 28th February, 2022. The said rule is set out below: "Rule 80(1)(A) - Notwithstanding anything contained in sub-rule (1), for the financial year 2020-2021, the said annual return shall be furnished on or before the twenty-eighth day of February, 2022" 29. Thus, in the facts of the present case, the period under Section 73(10), CGST Act, for issuance of the impugned order was to end on 28th February, 2025. Calculating backwards, the impugned SCN had to be issued at least three months prior to 28th February, 2025 i.e., there ought to be a clear three months period between the date of issuance of the impugned SCN and the outer limit for passing of the impugned order. 30. The impugned SCN in this case was issued on 30th November, 2024. It is the case of the Petitioner that it was delayed by two days as the stipulated three months period would have expired on 28th November, 2024. 31. The Respondent-Department's case on the contrary is that there was a gap of three clear cale....
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.... participating in the proceedings emanating from the impugned SCN, the records would show that the impugned SCN was issued on 30th November, 2024. Thereafter, a reply was to be filed by the Petitioner on or before 30th December, 2024 i.e., a full month was given to the Petitioner to file a reply. 38. The impugned SCN also communicated a date for personal hearing, which was fixed for 17th January, 2025. However, just three days before the expiry of the date to file a reply i.e., on 27th December, 2024, the Petitioner sought 15 days' time extension for filing the reply. The said letter issued by the Petitioner to the Respondent-Department, seeking extension of time to file reply reads as under: "Dear Sir, We, Tata Play Limited ('we' or 'us' or 'the company' or 'Noticee') are registered under Central Goods and Services Tax Act (CGST Act) and Delhi Goods and Services Tax Act (DGST Act), 2017 vide GSTIN 07AAGCS9294M1ZH are in receipt of the above referred SCN with reference ZD071124042245S dated 30 November 2024 issued under section 73 of CGST Act, 2017 for FY 2020-21. In this regard, while we have initiated the collation of necessary data and information for preparing the respon....
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....djournments can be granted in any circumstance. 43. However, this provision cannot be interpreted in a manner that there has to mandatorily be a minimum of three adjournments afforded to every person. For seeking an adjournment, such person has to show sufficient cause and at the bare minimum, has to at least make a request for adjournment. 44. In the present case, for the first hearing, an adjournment was sought and the same was granted. For the second hearing, no adjournment appears to have been sought. In fact, in the reply dated 22nd January, 2025, even if it is presumed that the Petitioner sought a hearing, the hearing was granted on 27th January, 2025 but was not attended by the Petitioner. 45. A perusal of the reply dated 22nd January, 2025 reveals as under: "E. PRAYER 29. The Noticee requests to be heard in person in the event their contentions are not acceptable, and continuation of the proceedings is sought. Without prejudice to any of the contentions set above, it is submitted that the Noticee reserves the right to know the basis/ issue and make additional submissions during the personal hearing and before the passage of any notice/ adverse order. 30. Furthermor....
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....writ petition under Article 226 of the Constitution. But a writ petition can be entertained in exceptional circumstances where there is: (i) a breach of fundamental rights; (ii) a violation of the principles of natural justice; (iii) an excess of jurisdiction; or (iv) a challenge to the vires of the statute or delegated legislation. 12. In the present case, none of the above exceptions was established. There was, in fact, no violation of the principles of natural justice since a notice was served on the person in charge of the conveyance. In this backdrop, it was not appropriate for the High Court to entertain a writ petition. The assessment of facts would have to be carried out by the appellate authority. As a matter of fact, the High Court has while doing this exercise proceeded on the basis of surmises. However, since we are inclined to relegate the respondent to the pursuit of the alternate statutory remedy under Section 107, this Court makes no observation on the merits of the case of the respondent. 13. For the above reasons, we allow the appeal and set aside the impugned order of the High Court. The writ petition filed by the respondent shall stand dismissed. How....
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.... matter on merits, wherever possible. The relevant portions of the judgment is extracted below: "56. Firstly, section 129B(1) of the Act empowers the learned Tribunal, seized with an appeal, challenging the order of the adjudicating authority, to "pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary". We are convinced that the jurisdiction, of the learned Tribunal, to "confirm, modify or annul" the order dated October 4, 2019, was wide enough to encompass the power to direct provisional release, and fix the terms thereof. Remand, to the authority to pass the order under appeal before the learned Tribunal, is, statutorily, only an alternative course of action, the learned Tribunal. We may take judicial notice, at this point, of the fact repeated demands, to the authorities below, merely clog the litigative process and lead to multiplicity of proceedings, and benefits neither ....