AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2025 (9) TMI 858
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....ss, with consent of the learned advocates for the parties, the matter is taken up for hearing. 4. By this petition under Article 227 of the Constitution of India, the petitioner has prayed for the following reliefs : "(A) This Hon'ble Court may be pleased to issue a writ of mandamus or any other appropriate writ in the nature of mandamus and/or an appropriate writ, order or direction, quashing and setting aside the impugned notice dated 05.08.2024 issued by the respondent authority (Annexure-A); (AA) This Hon'ble Court may be pleased to issue writ of mandamus or any other appropriate writ, order or direction, quashing and setting aside the impugned order dated 04.02.2025 passed by the opponent authority in Form GST DRC-07 (Annexure - A/1); (B) Pending admission, hearing and final disposal of this petition, this Hon'ble Court may be pleased to stay the further proceedings that are initiated vide issuance of the impugned notice dated 05.08.2024 issued by the respondent authority (Annexure-A); (BB) Pending admission, hearing, and final disposal of this petition, this Hon'ble Court may be pleased to stay the impugned order dated 04....
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....r the provisions of Section 2(90) of the GST Act, in a composite contract, GST rate would be applicable as per the predominant rate and the transaction would be categorised as that of the supply at the rate of 5% only. 5.6. The petitioner also challenged the communication dated 19.10.2020 before this Court by preferring Special Civil Application No.6274 of 2021 which was withdrawn on 1st February, 2024 by the petitioner as the time limit to issue the notice under Section 73 of the GST Act was over by that time for the period under consideration i.e. Financial Year 2017-18. 5.7. The respondent thereafter issued the intimation in Form DRC-01A on 01.08.2024 invoking the provisions of Sub-section (5) of Section 74 of the GST Act and petitioner was called upon to file reply on such intimation within a period of three days. The petitioner by reply dated 2nd August, 2024, requested for further time of ten days to respond to the intimation, however, the respondent-Authority without granting any further time, issued the notice in Form DRC-01 on 05.08.2024. 5.8. Being aggrieved, the petitioner has preferred this petition on the ground that respondent could not have issued the notice....
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....itiated by the respondent-Authority. 6.5. It was submitted that provisions of Section 74 of the GST Act can be invoked only when 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 by reason of fraud or any willful misstatement or suppression of facts to evade tax. It was submitted that in the facts of the present case, there was no fraud or any willful misstatement or suppression of facts by the petitioner at any point of time which has been pointed out or reflected in the impugned show-cause notice which would have permitted the respondent to assume the jurisdiction to issue the notices under Section 74(1) read with Section 74(10) of the GST Act beyond the period of five years. It was therefore submitted that the impugned notice and the Order-in-Original passed by the respondent during the pendency of this petition is liable to be quashed and set aside. 7.1. On the other hand, learned Assistant Government Pleader Ms. Shrunjal Shah for the respondent submitted that the respondent could not take any action under Section 73 of the GST Act in view of the pendency of ....
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.... issued on 01.08.2024 in Form DRC-01A which is attached at Annexure E to the impugned Petition against which time was sought to file a reply. iv. Thereafter, on 05.08.2014, notice in Form DRC-01 was issued being the last day to issue a notice u/s 74 of the Act. It is submitted that upon receipt of such notice, a Writ Petition was filed by the Petitioners before this Hon'ble Court challenging the invocation of s. 74. A copy of the screenshot of the Gujarat High Court portal was filed in reply before the answering Respondent. v. It is submitted that since no stay was granted by the Hon'ble High Court further reminder notices were issued on 16.10.2024, 11.11,2024 and 15.11.2024. It is further submitted that personal hearing dates were granted in each reminder notices issued. A copy of the reminder notices dated 16.10.2024, 11.11.2024 and 25.11.2024 is attached herewith as Annexure R6, Annexure R7 and Annexure R8 respectively. vi. It is submitted that since no reply was received by the answering Respondent, a final Notice dated 30.01.2025 was issued requesting them to produce a Stay Order of the Hon'ble Gujarat High Court since the time-limit for ....
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....4.04.2018 with regard to installation of solar power plant of 15KWP is attached herewith as Annexure R9. The said invoices evidence that the installation charges were only Rs. 15,000/- for installing a 15KWP Solar Power Plant amounting to Rs. 9,45,000/-. This clearly evidences suppression and willful misstatement for invoking jurisdiction u/s 74 of the Act. j) It is further submitted that since after the communication dated 19.10.2020, the Petitioner filed a writ Petition and thereafter was not complying to the notices issued and further was not providing the documents sought like invoices and further bifurcation of supply to verify whether the taxes are duly paid, the answering Respondent had no option but to issue the impugned notice u/s 74 since it was evident from the conduct of the Petitioners that they were indulging in suspicious activities to evade payment of tax at the appropriate rate." 7.3. Referring to the above averments, it was submitted that the respondent had no option but to issue the impugned notice under Section 74 of the GST Act as it is evident from the conduct of the petitioner that the petitioner has indulged in suspicious activity to evade the pa....
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....ereon under section 50 and a penalty leviable under the provisions of this Act or the rules made thereunder. (2) The proper officer shall issue the notice under sub-section (1) at least three months prior to the time limit specified in sub-section (10) for issuance of order. (3) Where a notice has been issued for any period under sub-section (1), the proper officer may serve a statement, containing the details of tax not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilised for such periods other than those covered under sub-section (1), on the person chargeable with tax. (4) The service of such statement shall be deemed to be service of notice on such person under sub-section (1), subject to the condition that the grounds relied upon for such tax periods other than those covered under sub-section (1) are the same as are mentioned in the earlier notice. (5) The person chargeable with tax may, before service of notice under sub-section (1) or, as the case may be, the statement under sub-section (3), pay the amount of tax along with interest payable thereon under section 50 on the basis of his own ascertainment ....
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....ised input tax credit, requiring him to show cause as to why he should not pay the amount specified in the notice along with interest payable thereon under 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. (3) Where a notice has been issued for any period under sub-section (1), the proper officer may serve a statement, containing the details of tax not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilised for such periods other than those covered under sub-section (1), on the person chargeable with tax. (4) The service of statement under sub-section (3) shall be deemed to be service of notice under sub-section (1) of section 73, subject to the condition that the grounds relied upon in the said statement, except the ground of fraud, or any wilful-misstatement or suppression of facts to evade tax, for periods other than those covered under sub-section (1) are the same as are mentioned in the earlier notice. (5) The person charge....
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....and such proceedings against the main person have been concluded under section 73 or section 74, the proceedings against all the persons liable to pay penalty under sections 122, 125, 129 and 130 are deemed to be concluded. Explanation 2.-For the purposes of this Act, the expression "suppression" shall mean non-declaration of facts or information which a taxable person is required to declare in the return, statement, report or any other document furnished under this Act or the rules made thereunder, or failure to furnish any information on being asked for, in writing, by the proper officer." 9. On perusal of the impugned show-cause notice issued on 05.08.2024, it appears that the same does not reflect any fraud, wilful misstatement or suppression of facts on part of the petitioner which is tried to be made good by filing the affidavit-in-reply by the respondent. 10. The contention in the paragraph No.6 of the show-cause notice ascribing the intention of the petitioner for timing of the withdrawal of the earlier petition on the ground that the petitioner intended to evade tax, is also without any basis and therefore, such recording of the reasons for assumption of jur....