TaxTMI 
TaxTMI 
2025 (8) TMI 68
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....ter, 'the impugned order') arising from the impugned 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-De....
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....ayan, ld. Senior counsel on behalf of the Petitioner that the demand in the impugned SCN and the consequent impugned 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 passi....
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.... 'Yes' for the option of personal hearing, however, due to a glitch on the GST portal, it shows as 'No' on the printed form. iii. While acceding to the fact that the Petitioner 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-....
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....on 17th January,2025 was adjourned to 27th January, 2025. ii. It is further stated that the Petitioner filed a reply dated 22nd January, 2025 and requested for personal hearing however, failed to attend the hearing scheduled 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 submiss....
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....the CGST Act is to fix the date by which an adjudication order has to be issued, the purpose of Section 73(2) of the CGST Act is to ensure that at least three months is available to the taxable person for filing a reply to the show cause notice issued to them and for being heard 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 un....
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.... 16. Section 3(35) of the General Clauses Act, 1897 defines a "month" as meaning a month reckoned according to the British calendar. 17. In Dodds v. Walker the House of Lords held that in calculating the period of a month or a specified number of months that had elapsed after the occurrence of a specified event, such 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 tw....
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....ions in that shortened time. That does not appear to be intent of the provisions of Section 75(2) or Section 73 (10) of the GST Act. 14. For all the aforesaid reasons, we would have to hold that the time permit set out under 73(2) of the Act is mandatory and any violation of that time period cannot be condoned, and would render the show cause notice otiose." 28. Considering 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 ....
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....een issued within the statutory limitations, are neither time barred nor issued without jurisdiction and are thus, not liable to be set aside on this ground. IV(b) Whether adequate opportunity has been granted to the Petitioner for filing a reply to the impugned SCN and for participating in the personal hearing? 37. Coming to the second issue i.e., whether adequate opportunity has been afforded to the Petitioner for 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 't....
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....shown by the person chargeable with tax, grant time to the said person and adjourn the hearing for reasons to be recorded in writing: Provided that no such adjournment shall be granted for more than three times to a person during the proceedings" A perusal of the above would show that it is only upon sufficient cause being shown, that an adjournment of hearing can be granted by the proper officer. The proviso to the said provision states that a maximum of three adjournments 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 ....
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....ted. 50. As held by the Supreme Court in Civil Appeal No. 5121 of 2021 titled The Assistant Commissioner of State Tax and Others vs. M/s Commercial Steel Limited, a writ petition can be entertained under exceptional circumstances only which are set out in the said judgment as under: "11. The respondent had a statutory remedy under section 107. Instead of availing of the remedy, the respondent instituted a petition under Article 226. The existence of an alternate remedy is not an absolute bar to the maintainability of a 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 ....
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....o the reasoning given by the Adjudicating Authority, the evidence on record including the statements and the documents. There can be no doubt that the appeal is a full-fledged first appeal before the Appellate Authority. 14. In fact, a coordinate bench of this Court Addl. D. G. (Adjudication) v. Its My Name P. Ltd., (2020 SCC OnLine Del 2760) in while dealing with a parallel provision i.e., Section 129B of the Customs Act, has not only held that the expressions 'confirm, modify or annul the decision or order' have wide amplitude, but also encouraged the Appellate Authority to decide the 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 ....
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....e ground of rejection of the refund claim in the impugned order was erroneous. However, after an examination as to whether or not any excess payment of tax had actually occurred in the case, rejected the appeal by holding that there is no requirement of refund. 6. Therefore, recourse is taken to redress the grievance of the petitioner by filing this writ petition before this Court, as no Goods and Services Tax Appellate Tribunal had been constituted to entertain an appeal under Section 112 of the CGST Act. ****** 16. We are unable to accept the submission of learned counsel for the petitioner that once the order of the Adjudicating Authority was held to be erroneous by the Appellate Authority, the Appellate Authority ought to have allowed refund of excess tax paid by allowing the appeal of the petitioner (the appellant) without any further consideration. 17. Relevant part of section 107(11) of CGST Act,2017 reads as under: (11) The Appellate Authority shall, after making such further inquiry as may be necessary, pass such order, as it thinks just and proper, confirming, modifying or annulling the decision or order appealed against but sh....