TaxTMI 
TaxTMI 
2026 (9) TMI 1660
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.... the Union of India and learned Additional Advocate General-5 for the State. 2. This writ petition has been preferred seeking following reliefs:- "i). For issuing a writ of certiorari or any other appropriate writ quashing/ setting aside Circular No. - 3/3/2017-GST dated 05.07.2017, Circular No. 31/05/2018-GST dated 09.02.2018 and Circular No. 169/01/2022 GST dated 12.03.2022 which were issued by the Central Board of Indirect Taxes and Customs (Board) which had no powers to issue the same and based thereon to confer any power of assignment of functions of the 'proper officer' upon Central Tax Officers for issuing any kind of notices, show cause notices and orders under Section 73 and S 74 and thereby consequent notice, show cause notice and order of demand are not legally valid and without authority of law (Annex-P-1 & Annex-P-2). It is to be submitted that power of appointment of the Board cannot be equated with the power of assignment for qualifying as proper officer. ii) For the Show cause Notice vide process No-3954 dated 12.07.2024 (as contained in Annexure-p1) without digitally signed and Summary of Show Cause Notice vide Reference No- ZD100724032789A dat....
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....nd 2,91,39,160 BGST Act, total amounting to Rs.5,82,78,320 for the period July 2017 to March-2018 in Form GST DRC-07 which were passed without providing "Personal Hearing" in violation of section 75(4) BGST/CGST Act, 2017 and that is evident from Annexure P-1A and so it is violative of Principle of natural justice. vi) For issuing of a writ of certiorari or any other appropriate writ quashing/setting aside the Order vide Process No-69/GST/JC/2024-25 dated 13.11.2024 (as contained as Annexure-P-2) and Summary of demand order vide Reference No-ZD1012240008740 dated 03.12.2024 (as contained in Annexure-P-2A) in form of DRC-07 passed by the Respondent No-04 demanding tax, interest and penalty Rs. 2,91,39,160 under the CGST and 2,91,39,160 BGST Act, total amounting to Rs.5,82,78,320 for the period July 2017 to March-2018 in Form GST DRC-07 which were passed without issuing GST ASMT-10 under Rule 99 BGST/CGST Rule 2017 read with Section 61 BGST/CGST Act 2017 and this render the entire proceedings of the Respondent No-4 violative of principles of natural justice and thus liable to be set aside." Brief Facts of the Case 2. The factual matrix of this case are not in dispute. ....
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....on 73 and thereby consequent notice, show-cause notice and order of demand were not legally valid. It is submitted that these Circulars are liable to be quashed. 6. Learned counsel for the petitioner submits that the issue raised herein is illustrated by the Hon'ble Supreme Court in Canon India Pvt. Ltd. v. Commissioner of Customs reported in 2021 SCC OnLine SC 200 which constitutes the analogous provisions of the Customs Act, 1962. It is submitted that as per Section 2(91) of the CGST Act, 'Proper Officer' means the 'Commissioner' or the officer of the Central Tax who is assigned that function by the Commissioner in the Board. Thus, according to the petitioner, a person other than the Commissioner would not qualify as 'Proper Officer' under Section 2 (91) of the CGST Act. 7. It is submitted that pre-test needs to be satisfied. First; there has to be a valid appointment as Officer of the Central Tax, Second; there has to be a valid entrustment or assignment of the functions of the Proper Officer by the Board. 8. Learned counsel for the petitioner has further referred Section 3 and Section 4 of the CGST Act to strengthen his submissions. 9. In course of his arguments, le....
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....icer of DRI was not an "officer of customs" as provided under Section 2(34) of the Customs Act. In the present case, however, there is no dispute and no such dispute was ever raised about the officers of the Audit Commissionerate, which includes respondents no.4 and 5 as being the "officers of central tax". In paragraph 5 of the written submissions fled by Mr Sachdeva on behalf of the petitioner, it is clearly stated that "the petitioner is not disputing the appointment of Audit Commissionerate as Central Tax Officers. In fact, the petitioner is raising the challenge with regard to the source of power of the Board in assigning functions of proper officer to Audit Commissionerate. To reiterate, the core of the challenge in this petition is not of the manner of assignment rather the enabling provision for such assignment of function as Proper officer. 48. The above admission is more than sufficient to distinguish the decisions in Canon India (P.) Ltd. (supra) and Sayed Ali (supra). As noted above, the issue involved in both these decisions was whether an officer of DRI could be appointed as a "proper officer" in terms of Section 2(34) of the Customs Act without the Central G....
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.... not be said to have been attracted, nor was there any necessity to issue Notification as sought to be submitted by Mr. Rastogi. There could not be any disagreement to the proposition of law laid down by the Supreme Court in case of Canon India (P.) Ltd. (supra) relied upon by the learned Advocate Mr. Rastogi that when a statute directs that the things to be done in a certain way, it must be done in that way alone. However, in the instant case, the Board has assigned the officers to perform the function as proper officers in relation to various Sections of CGST Act and the Rules made thereunder by issuing the Circular in question, the question of issuing Notification for delegation of powers by the Commissioner as contemplated under Section 167 of the CGST Act does not arise. Mr. Rastogi appears to have misread the powers of the Board to assign the officers to perform the function as proper officers in relation to the various Sections of the CGST Act, as the delegation of powers by the Commissioner to the other authority or the officer as contemplated in Section 167 of the CGST Act. The Court, therefore, does not find any substance in the submission of Mr. Rastogi that the....
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.... CGST Act and vested in them all powers under the CGST Act and IGST Act and Rules made thereunder with respect to the jurisdiction specified in the tables given below the said notifications. 53. Thus, in the present case, not even any dispute was raised about the officers referred to in the impugned circulars being central tax officers. Section 4 of the CGST Act provides that the Board may, in addition to the officers as may be notified by the Government under section 3, appoint such persons as it may think it to be the officers under the CGST Act. Without prejudice to the provisions of sub-section (1) of Section 4, the Board may, by order, authorise any officer referred to in clauses (a) to (h) of Section 3 to appoint officers of central tax below the rank of Assistant Commissioner of Central Tax for the administration of the CGST Act." Submissions on behalf of Respondents 12. Learned senior standing counsel for the CGST and CX submits that the views expressed by the Hon'ble Bombay High Court are well reasoned and this Court may be persuaded to take the same view. We have considered this aspect of the matter. An analysis of the Notification dated 19.06.2017 and the ....
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....rnover amounting to Rs. 10,40,68,429/-, which has been considered as taxable value under Section 15(1) of CGST/SGST Act, 2017, and have not discharged the tax liability thereon amount to Rs. 2,91,39,160/- (Rupees Two Crore Ninety One Lakh Thirty Nine Thousand One Hundred Sixty Only) for the period July 2017 to March 2018. 21. Invoking extended period of limitation due to suppression of facts:- I find that GST is a self-assessment tax as provided under Section 59 of the CGST/BGST Act, 2017. Hence, it is incumbent upon every taxable person to determine the taxability of every transaction, compute the applicable tax, discharge such as applicable and report the same without any interjection of the revenue authorities. Further, in terms of the explanation 2 of Section 74 of CGST/BGST Act, 2017-'for the purpose of this act, the expression "suppression" shall mean non-declaration of facts or information which a taxable person is required to declare in the returns, 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'. I find that the notice....
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....e demanded and recovered by invoking the extended period of limitation under Section 74(1) of the said Acts for contraventions of the provisions of Sections 9 and 59 of CGST/BGST Act, 2017. I drop the balance amount of demand of Rs. 2,18,60,986/- (Rupees Two Crore Eighteen Lakh Sixty Thousand Nine Hundred Eighty Six only) out of the total demand of Rs. 5,10,00,146/- (CGST Rs. 2,55,00,073/- + SGST Rs. 2,55,00,073/-) as proposed in the impugned SCN. I further find that Section 74 of the CGST Act, 2017 prescribes imposition of penalty in case of fraud, wilful-misstatement and suppression of facts. In the instant case, I find that the noticee have suppressed the material facts as discussed in the foregoing paras and also willfully misstated the facts in their GST returns with intend to evade tax. Hence, I find and hold that the noticee is liable for imposition of penalty of Rs. 2,91,39,160/- (Rupees Two Crore Ninety One Lakh Thirty Nine Thousand One Hundred Sixty only) [CGST Rs. 1,45,69,580/- + SGST Rs. 1,45,69,580/-], equivalent to the tax demanded, under Section 74(1) of the CGST/BGST Acts read with Section 122(2)(b) of the Acts for contravention of the provisions of Acts as cited su....