TaxTMI 
TaxTMI 
2026 (5) TMI 568
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....ate Limited (HTPL) is a private limited company incorporated on 03.06.2016 and registered with the Karnataka GST authorities, which owns and operates an electronic commerce portal (e-commerce portal) under the name and style 'www.udaan.com', wherein the users registered on the said portal undertake business to business (B2B) transactions of sale and purchase of goods by accessing the portal. It is contended that during the relevant period, which is the subject matter of the impugned show cause notice (SCN), apart from granting access to the online portal, petitioner had not undertaken any other activity such as collection of payment, logistics, credit facility etc., and for such services, the online portal empanelled various service providers for rendering these optional services such as logistics and payment services and credit services etc., which may be availed by the users by entering into the direct contracts with the said service providers and alternatively, the users could also arrange for such services on their own by engaging service provider at their end and the users of the online platform can either procure these services from the said empanelled service providers or pr....
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....espite the aforesaid facts and circumstances, the respondents have proceeded to issue the impugned show cause notice and as such, petitioner is before this Court by way of the present petition. 3. Heard learned Senior counsel for the petitioner and learned counsel for the respondents and perused the material on record. 4. In addition to reiterating the various contentions urged in the petition as well as rejoinder / reply filed by the petitioner and referring to the material on record, learned Senior counsel for the petitioner submits that the present petition is restricted to the demand made by the respondents in the impugned show cause notice in relation to Sections 52 and 17(2) of the CGST / KGST Act. It is submitted that the transactions in question are not supplies of the petitioner and Section 74 has no application and the impugned notice purporting to invoke Section 74(1) of the CGST / KGST Act deserves to be quashed. It was submitted that there was no provision in the CGST / KGST Act, which enables the respondents to treat the petitioner as an assessee in default, since the petitioner was not a person who has collected the tax and was consequently not liable to pay su....
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.... open for this Court to entertain the present petition challenging the impugned SCN notwithstanding availability of an alternative remedy in favour of the petitioner. It is therefore submitted that the impugned SCN and all further proceedings pursuant thereto deserve to be quashed. 5. Per contra, learned counsel for the respondents - revenue would reiterate the various contentions urged in the statement of objections and submits that there is no merit in the petition and the same is liable to be dismissed. 6. I have given my anxious consideration to the rival submissions and perused the material on record. 7. A perusal of the impugned SCN would indicate that the respondents have purported to invoke Section 74(1) of the CGST/KGST Act and alleged that the petitioner has contravened the following provisions of the Act as hereunder:- * Section 52 of the CGST Act, 2017 (and similar provisions in SGST Act, 2017) in as much as they failed to collect TCS 2 1% of the net value of taxable supplies made though it by other supplier where the consideration with respect to such supplies is to be collected by the operator; * Section 17(2) of CGST Act, 2017 (and similar ....
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....s where the consideration with respect to such supplies is to be collected by the operator. Explanation .-For the purposes of this sub-section, the expression "net value of taxable supplies" shall mean the aggregate value of taxable supplies of goods or services or both, other than services notified under subsection (5) of section 9, made during any month by all registered persons through the operator reduced by the aggregate value of taxable supplies returned to the suppliers during the said month. (2) The power to collect the amount specified in subsection (1) shall be without prejudice to any other mode of recovery from the operator. (3) The amount collected under sub-section (1) shall be paid to the Government by the operator within ten days after the end of the month in which such collection is made, in such manner as may be prescribed. (4) Every operator who collects the amount specified in sub-section (1) shall furnish a statement, electronically, containing the details of outward supplies of goods or services or both effected through it, including the supplies of goods or services or both returned through it, and the amount collected unde....
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....al year or the actual date of furnishing of the relevant annual statement, whichever is earlier. (7) The supplier who has supplied the goods or services or both through the operator shall claim credit, in his electronic cash ledger, of the amount collected and reflected in the statement of the operator furnished under sub-section (4), in such manner as may be prescribed. (8) The details of supplies furnished by every operator under sub-section (4) shall be matched with the corresponding details of outward supplies furnished by the concerned supplier registered under this Act in such manner and within such time as may be prescribed. (9) Where the details of outward supplies furnished by the operator under sub-section (4) do not match with the corresponding details furnished by the supplier under 6[section 37 or section 39], the discrepancy shall be communicated to both persons in such manner and within such time as may be prescribed. (10) The amount in respect of which any discrepancy is communicated under sub-section (9) and which is not rectified by the supplier in his valid return or the operator in his statement for the month in which discrepa....
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....f three years from the due date of furnishing the said statement] Explanation, -For the purposes of this Section, the expression "concerned supplier'' shall mean the supplier of goods or services or both making supplies through the operator." 10.1 The Central of Indirect Taxes and Customs, issued a Circular No.194/06/2023-GST dated 17.07.2023 clarifying TCS liability under Section 52 of the CGST / KGST Act in case of multiple e-commerce operators in one transaction. The said Circular reads as under:- Circular No. 194/06/2023-GST File No. CBIC-20001/5/2023-GST Government of India Ministry of Finance Department of Revenue Central Board of Indirect Taxes and Customs GST Policy Wing **** New Delhi, Dated the 17th July, 2023 To, The Principal Chief Commissioners/Chief Commissioners/Principal Commissioners/ Commissioners of Central Tax (All) The Principal Directors General/ Directors General (All) Madam/Sir, Subject: Clarification on TCS liability under Sec 52 of the CGST Act, 2017 in case of multiple E-commerce Operators in one transaction. Reference has been received seeking c....
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.... e.g.: Buyer-side ECO collects payment from the buyer, deducts its fees/commissions and remits the balance to Seller-side ECO. Here, the Seller-side ECO will release the payment to the supplier after deduction of his fees/commissions and therefore will also be required to collect TCS, as applicable and pay the same to the Government in accordance with section 52 of CGST Act and also make other compliances under section 52 of CGST Act. In this case, the Buyer-side ECO will neither be required to collect TCS nor will be required to make other compliances in accordance with section 52 of CGST Act with respect to this particular supply. Issue 2: In a situation where multiple ECOs are involved in a single transaction of supply of goods or services or both through ECO platform and the Supplierside ECO is himself the supplier of the said supply, who is liable for compliances under section 52 including collection of TCS? Clarification: In such a situation, TCS is to be collected by the Buyer-side ECO while making payment to the supplier for the particular supply being made through it. e.g. Buyer-side ECO collects payment from the buyer, deducts its ....
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.... which two independent parties chose to transact and the sellers using the online platform having been registered under the CGST / KGST Act and having paid the tax due on their respective supplies, in the absence of any provision under the CGST / KGST Act to treat the petitioner as a supplier of such supplies, Section 74 could not have been invoked at all and the impugned SCN deserves to be quashed. 10.4 The impugned SCN also fails to consider and appreciate that there is no provision in the CGST / KGST Act to treat the petitioner as an assessee in default, under which, the person responsible for collecting tax become s liable to pay tax which is a liability of the supplier of goods or services; in this context, it is relevant to state that in other tax / physical statutes for eg., Section 201 of the Income Tax Act, 1961 which provides for a legal fiction under which a person responsible for deducting tax "an assessee in default" and is liable to pay tax not deducted; however, in the CGST / KGST Act, there is no provision to issue a notice to the person who has not collected the tax to pay such tax which is the primary liability of the supplier of the goods or services and the i....
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....etitioner collects the payment. As stated supra, the petitioner herein does not collect consideration or payment and the various persons registered in the petitioner's platform had engaged their own service providers and were settling payments directly among themselves, thereby establishing that the petitioner would neither be covered nor come within the scope and ambit of Section 52 of the CGST / KGST Act and the impugned SCN issued by the respondents illegally invoking Section 52 deserves to be quashed on this ground also. 10.7 A perusal of the impugned SCN will indicate that the respondents have proceeded on an erroneous assumption that the services provided by HLPL of logistics and payment collection services are in fact, services of the petitioner - HTPL and therefore, petitioner is covered under Section 52 of the CGST / KGST Act. However, such an assumption is wholly erroneous and contrary to the material on record, in as much as HLPL is a different, separate, distinct, juristic and legal entity which is carrying on business on its own account and is also separately registered with the GST authorities, while the petitioner - HTPL is also a different, separate, distinct, ju....
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.... Section 17. Apportionment of credit and blocked credits (1) Where the goods or services or both are used by the registered person partly for the purpose of any business and partly for other purposes, the amount of credit shall be restricted to so much of the input tax as is attributable to the purposes of his business. (2) Where the goods or services or both are used by the registered person partly for effecting taxable supplies including zero rated supplies under this Act or under the Integrated Goods and Services Act and partly for effecting exempt supplies under the said Acts, the amount of credit shall be restricted to so much of the input tax as is attributable to the said taxable supplies including zero rated supplies. (3) xxxxxxxxxxxxxxxxxxxxx 11. 1 It is also relevant to extract Section 7(1)(a) of the CGST / KGST Act, which defines 'supply' as under:- Scope of supply. 7.(1) For the purpose of this Act, the expression "supply" includes - (a) all forms of supply of goods or services or both such as sale, transfer, barter, exchange, licence, rental, lease or disposal made or agreed to be made for a consideration by ....
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....lding as under wherein it was held that : "4. It is not in dispute that the agreements between the appellant and their dealers are genuine agreements entered into an arms length, that they are as between principal and principal and that the payments contemplated therein are made. The relevant clauses of the agreement are: (6) All Company's products to be supplied under this Agreement shall be paid for in cash upon delivery. All taxes (Central or State), levies, imposition, octroi and duties which may be assessed on the Company in respect of the sale of the Company's products or levied on the said sales shall be borne by the Dealer and the Dealer shall indemnify and keep indemnified the Company against any claim, demands, proceedings, costs, charges and expenses in respect of such imposition, taxes and duties. (16) The Dealer will be informed from time to time of the Company's products which are available and of their current list prices together with the terms of supply and prices applicable to the dealer. The Company shall be at liberty to intimate to the dealer the maximum prices at which the dealer shall sell the products. The dealer shall,....
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.... dealers anywhere in the country. Thus, though one dealer might have to repair goods sold by another dealer and incur costs in that regard, he also had the benefit of having the goods he sold reparable throughout the country. The provision as to after sales service, therefore, benefited not only the appellant; it was a provision of mutual benefit to the appellant and the dealer. 7. We think that in adjudicating matters such as this, the Excise authorities would do well to keep in mind legitimate business considerations. " (b) Secondly, in the case on hand, there are no services, much less free services, being provided by the petitioner who operates the said web site and promotes its usage and under Section 17(2), the onus is on the respondents to show how the input services are being used in exempt and taxable services and this data is clearly not forthcoming from the show cause notice and the same being conspicuously absent, the impugned SCN deserves to be quashed. (c) Thirdly, the material on record also discloses that the petitioner does collect licensing fees from the other operators on which there is no allegation regarding non-payment of GST and the....
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....n 17(2) would apply only when there is a "supply" undertaken and in order to fall under the scope of supply, there has to be "a consideration" involved against the activity undertaken and only the activities specified in Schedule - I are considered as supply without charging any consideration; the activities undertaken by the petitioner includes activities which undisputedly do not fall in Schedule - I and since the services provided by the petitioner are without any consideration, the same do not qualify as supply as per Section 7 of the CGST / KGST Act. It follows there from that if a transaction does not qualify a supply at all, it is not correct or permissible in law to characterize or construe or treating as a "free supply" for the purpose of invocation of the provisions of Section 74 thereby making it clear that the provisions of the CGST / KGST Act including the restrictions under Section 17(2) are not applicable to the transactions in question and the attempt made by the respondents in the impugned SCN seeking to restrict the ITC of the petitioner by invoking Section 17(2) is nothing but an attempt to include a transaction within the purview of the CGST / KGST Act which is ....
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....otice does not contain any allegation that the petitioner had not paid taxes or wrongly availed or utilised ITC due to any fraud or willful misstatement or suppression of facts to evade tax, the impugned SCN which lacked the basic ingredients would be wholly without jurisdiction or authority of law and contrary to the said provisions. In the case of M/s.NCN Pearson Inc. vs. Union of India & others - W.P.No.7635/2024 dated 16.07.2025, this Court held as under:- 17. As stated supra, it is the specific contention of the petitioner that the impugned SCN dated 12.02.2024 issued under Section 74 of the CGST Act, by the 2nd respondent on the ground of 'wilful suppression' is illegal and arbitrary being manifestly violative of the law for want of satisfaction of the jurisdictional fact of Section 74 of the CGST Act and that the impugned show cause notice is wholly without jurisdiction or authority of law as the foundational jurisdictional facts to trigger / invoke Section 74 of the CGST Act i.e., existence of wilful suppression to evade / avoid payment of GST in relation to Type - III tests has not been satisfied by the respondents who seek the invoke the benefit of the ex....
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....cribed as preliminary to, or collateral to the merits of, the issue. If, at the inception of an inquiry by an inferior tribunal, a challenge is made to its jurisdiction, the tribunal has to make up its mind whether to act or not and can give a ruling on the preliminary or collateral issue; but that ruling is not conclusive." The existence of a jurisdictional fact is thus a sine qua non or condition precedent to the assumption of jurisdiction by a court or tribunal. Jurisdictional fact and adjudicatory fact 29. But there is distinction between "jurisdictional fact" and "adjudicatory fact" which cannot be ignored. An "adjudicatory fact" is a "fact in issue" and can be determined by a court, tribunal or authority on "merits", on the basis of evidence adduced by the parties. It is no doubt true that it is very difficult to distinguish "jurisdictional fact" and "fact in issue" or "adjudicatory fact". Nonetheless the difference between the two cannot be overlooked. 30. In Halsbury's Laws of England (4th Edn.), Vol. 1, Para 55, p. 61; Reissue, Vol. 1(1), Para 68, pp. 114-15, it is stated: "There is often great difficulty in determining whet....
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....er. The Court stated (at AIR p. 498, para 21) that "once it had the power it could determine whether the question of the date of construction was rightly or wrongly decided". (See also Arun Kumar v. Union of India [(2007) 1 SCC 732].) 34. But, in Roshan Lal Mehra v. Ishwar Dass [AIR 1962 SC 646 : (1962) 2 SCR 947] this Court held that the Rent Controller had jurisdiction to fix standard rent for new construction made after 24-31947. The question was as to when the construction was made. The Rent Controller recorded a finding of fact that the construction was put up after 24-3-1947. The finding was confirmed by the District Judge. But the High Court interfered in revision. 35. Setting aside the decision of the High Court, this Court stated: (Roshan Lal Mehra case [AIR 1962 SC 646 : (1962) 2 SCR 947], AIR p. 659, para 17) "17. ... It is clear from the orders of the Rent Controller and of the District Judge in appeal that the question whether the second floor was newly constructed or not was really a question of fact, though undoubtedly a jurisdictional fact on which depended the power of the Rent Controller to take action under Section 7-A. If the Rent Cont....
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....ge to the Appellate Bench. That Bench allowed the appeal with the observations, "in the present case the question before the Income Tax Officer, Rampur, was whether the firm Nathirmal and Sons was non-resident or not. There was material before him on this question. He had jurisdiction to decide the question either way. It cannot be said that the officer assumed jurisdiction by a wrong decision on this question of residence". The Appellate Bench appears to have been under the impression that the Income Tax Officer was the sole Judge of the fact whether the firm in question was resident or non-resident. This conclusion in, our opinion, is wholly wrong. No authority, much less a quasi-judicial authority, can confer jurisdiction on itself by deciding a jurisdictional fact wrongly. The question whether the Jurisdictional fact has been rightly decided or not is a question that is open for examination by the High Court in an application for a writ of certiorari. If the High Court comes to the conclusion, as the learned Single Judge has done in this case, that the Income Tax Officer had clutched at the Jurisdiction by deciding a jurisdictional fact erroneously, then the assessee was entitl....
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.... cannot be consigned to Sub-Heading 7308.90 which is not specific and is a residuary item. As long as the subject goods were not classifiable under TI 68 when it existed, they cannot attract the corresponding Sub-Heading 7308.90. We also submit that Rule 9(2) cited in the show-cause notice is not applicable since there was no clandestine clearance." 66. It is, therefore, evident that the contention of the appellant was that Rule 9(2) cited in the show-cause notice was not applicable. But, unfortunately, despite the same it had not been adverted to by the Tribunal. We must notice that the appellant herein succeeded before the Appellate Collector. The Revenue went up in appeal. The Tribunal was, therefore, bound to take the aforementioned question into consideration inasmuch as a finding of fact was required to be arrived at that the period of limitation for issuing such notices under Section 11-A of the Act would depend upon the question as to whether such short-levy was due to any act of fraud, collusion, wilful misstatement or suppression of facts, (sic) the extended period of limitation of five years could not have been invoked. 67. Such an extended period of li....
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....mpugned SCN dated 12.02.2024 under Section 74 of the CGST Act is illegal and violative of Article 265 of the Constitution inasmuch as the impugned SCN seeks to realize monies from the petitioner under the guise of tax without the authority of the law and the impugned SCN deserves to be quashed. 22. The impugned SCN also fails to consider and appreciate that the issue of classification of Type-III Tests had not attained finality on account of W.P.No.3555/2021 preferred by the petitioner against the order of the AAAR pending adjudication before the Division Bench of this Court, in which there is an interim order in favour of the petitioner as stated supra; despite the sub-judice nature of the issue of classification and taxability of Type-III Tests pending before this Court, and interim orders having been granted in favour of the petitioner, the 2nd respondent has issued the impugned SCN relating to Type-III Tests, even though this very issue/question relating to classification and taxability of such supply of service was pending consideration of this Court and the impugned SCN deserves to be quashed on this score also. 23. A perusal of the impugned SCN will indicat....
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....ion/details in itself would attract the extended period of limitation as hereunder: 31. It is settled law that for invoking the extended period of limitation duty should not have been paid, short-levied or short-paid or erroneously refunded because of either fraud, collusion, wilful misstatement, suppression of facts or contravention of any provision or rules. This Court has held that these ingredients postulate a positive act and, therefore, mere failure to pay duty and/or take out a licence which is not due to any fraud, collusion or wilful misstatement or suppression of fact or contravention of any provision is not sufficient to attract the extended period of limitation. 26. Similarly, in the case of Anand Nishikawa Co. Ltd. vs. Commissioner of Central Excise Meerut - (2005) 7 SCC 749, the Apex Court held that a mere failure to declare does not amount to wilful suppression as hereunder: 26. In Tata Iron & Steel Co. Ltd. v. Union of India [(1988) 3 SCC 403 : 1988 SCC (L&S) 381 : (1988) 35 ELT 605] this Court held that when the classification list continued to have been approved regularly by the Department, it could not be said that the manufacturer was ....
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....n on the part of the appellant not to disclose the correct information or to evade payment of duty, it was not open to the Central Excise Officer to proceed to recover duties in the manner indicated in the proviso to Section 11-A of the Act. We are, therefore, of the firm opinion that where facts were known to both the parties, as in the instant case, it was not open to CEGAT to come to a conclusion that the appellant was guilty of "suppression of facts". In Densons Pultretaknik v. CCE [(2003) 11 SCC 390] this Court held that mere classification under a different sub-heading by the manufacturer cannot be said to be wilful misstatement or "suppression of facts". This view was also reiterated by this Court in CCE v. L.M.P. Precision Engg. Co. Ltd. [(2004) 9 SCC 703] 27. So also, in Continental Foundation Joint Venture vs. Commissioner of Central Excise, Chandigarh -(2007) 216 ELT 177 (SC), it was held by the Apex Court that mere omission to give correct information is not suppression of facts, unless it was deliberate to stop the payment of duty and that when the facts are known to both the parties, omission by one party to do what he might have done would not render i....
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.... at evading duty, that is to say, an element of intentional action must be present. 15. Similarly, in CCE v. Chemphar Drugs & Liniments [CCE v. Chemphar Drugs & Liniments, (1989) 2 SCC 127 : 1989 SCC (Tax) 245], this Court, while dealing with a similar situation of invocation of extended period of limitation under Section 11-A of the Act, this Court held as under : (SCC p. 131, para 9) "9. ... In order to make the demand for duty sustainable beyond a period of six months and up to a period of 5 years in view of the proviso to sub-section (1) of Section 11-A of the Act, it has to be established that the duty of excise has not been levied or paid or short-levied or short-paid, or erroneously refunded by reasons of either fraud or collusion or wilful misstatement or suppression of facts or contravention of any provision of the Act or Rules made thereunder, with intent to evade payment of duty. Something positive other than mere inaction or failure on the part of the manufacturer or producer or conscious or deliberate withholding of information when the manufacturer knew otherwise, is required before it is saddled with any liability, before (sic beyond) the period of ....
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....n contending on merits right from the show-cause notice till the appeal filed before this Court. 24. On merits, the Revenue's case throughout had been that the issue of valuation is covered against the assessee by the judgment of this Court in IFGL Refractories [CCE v. IFGL Refractories Ltd., (2005) 6 SCC 713] . Even in the order of CESTAT under challenge the Tribunal has proceeded on the basis that the principle of valuation laid down by this Court in IFGL Refractories [CCE v. IFGL Refractories Ltd., (2005) 6 SCC 713] holds good and remains valid even under the amended valuation provisions for the period post July 2000. We therefore find it strange that for the purposes of justifying its case on limitation, the Revenue wishes to take a position exactly contrary to what it has taken in the show-cause notice on merits. We cannot allow the Revenue to blow hot and cold in the same breath by relying upon IFGL case [CCE v. IFGL Refractories Ltd., (2005) 6 SCC 713] on merits while at the same time arguing that the same had no relevance for the purposes of examining the plea for a bona fide belief. 25. We are in full agreement with the finding of the Tribunal that du....
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.... extended period of limitation under Section 74 of the CGST Act by submitting that the concept of knowledge cannot be an appropriate defence; in this context, it is relevant to state that the said judgment is circumscribed and applicable only to cases wherein 'suppression' is established or admitted as can be seen from the relevant portion of the judgment as hereunder: "18. The Proviso comes into play only when suppression etc. is established or stands admitted. It would differ from a case where fraud, etc. are merely alleged and are disputed by an assessee. Hence, by no stretch of imagination the concept of knowledge can be read into the provisions because that would tantamount to rendering the defined term "relevant date" nugatory and such an interpretation is not permissible." 32. The aforesaid judgment in Neminath's case supra was considered by the CESTAT in Amway India Enterprises Pvt. Ltd. vs. Commissioner of Central Excise, New Delhi - 2017 (3) GSTL 69 (Tri.-Del), wherein it was held as under: "7. The show cause notice in this case has been issued by the Department alleging 'wilful and intentional suppression' of facts by the appell....
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....ilable cannot be foisted with a demand alleging suppression of facts. 34. The aforesaid discussion clearly establishes that the impugned Show Cause Notice dated 12.02.2024 issued under Section 74 of the CGST Act, by the 2nd respondent is illegal and arbitrary being manifestly violative of the law for want of satisfaction of the jurisdictional facts contemplated in Section 74 of the CGST Act and that the impugned show cause notice is wholly without jurisdiction or authority of law as the foundational jurisdictional facts to trigger / invoke Section 74 of the CGST Act i.e., existence of wilful suppression to evade / avoid payment of GST in relation to Type - III tests has not been satisfied by the respondents and the impugned show cause notice deserves to be quashed. 12.1 As stated supra, the vague, bald, omnibus and general allegations made in paragraphs - 9.1 and 9.2 of the impugned SCN do not satisfy or fulfill the mandatory requirements and parameters for invocation of Section 74 (1) of the CGST / KGST Act and consequently, the impugned SCN deserves to be quashed on this ground also. Point No.3 is accordingly answered in favour of the petitioner. 13. Insofar as ....