TMI Blog2023 (2) TMI 723X X X X Extracts X X X X X X X X Extracts X X X X ..... show cause notice did not deliberate with the content of reply but the adjudicating officer has proceeded to pass an order rejecting the refund application on the grounds which were never part of the original show cause notice as indicated. It is settled principle of law that if an allegation or ground is not made at the time of issuance of show cause notice, the authority cannot go beyond the scope of show cause notice to create new ground at the later stage of adjudication - In the instant case, had there been any opportunity given to the petitioner, the respondents might have proceeded to issue a subsequent show cause. At the cost of repetition, it is stated that it is only after the submissions of petitioner s reply, the Adjudicating Officer decided the refund application on the grounds which were not part of the show cause notice i.e. related to maintaining of two GSTIN number: one under RCM and other under forward charge mechanism (FCM) with two different rates of GST to be charged upon the services being provided. The impugned show cause notice dated 17th May, 2021 and the consequent order in original dated 14.06.2021 and order in appeal dated 08.12.2021, are quashed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner is that inadvertently, on account of a bonafide mistake, he deposited an amount of IGST of Rs.2,39,705/- CGST of Rs.83,86,310/- and SGST of Rs.83,86,310/- totaling to Rs.1,70,12,325/- in its electronic cash ledger [Pertaining to the RCM registration] instead of depositing it in the cash ledger of the GSTIN 20AAACD20866J1Z0 [pertaining to FCM registration]. The petitioner again deposited the same amount in the electronic cash ledger of the FCM registration to file GSTR-3B return. As there was double payment and the amount was lying as excess balance in the electronic cash ledger of the petitioner, an application for refund in FORM GST RFD-01 was filed on 18.04.2021. 4. During course of hearing, pursuant to the order dated 12.01.2023 Mr. S.K. Biswas, Assistant Commissioner, CGST, Jamshedpur, was present. The copy of the assessment records as certified to be true have also been submitted before the court for perusal in terms of the aforesaid order. 5. The petitioner was proceeded against a show cause notice dated 17th May, 2021 on an application for refund under Section 54 of the CGST Act, 2017 in respect of his registration GSTIN registration No. 20AAACD2086J2ZZ. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent No.4. The adjudicating authority on examination of his documents submission and returns which were uploaded in the portal for the period August, 2018 to March, 2021 came to finding that the applicant had taken two registrations of the GST number vide GSTIN No. i) 20AAACD2086J2ZZ, and ii) 20AAACD2086J1Z0 of the same category of services i.e. Transport of goods by Road ; Transport of goods by Rail and Cargo handling services in the State of Jharkhand having the same permanent account number, the principal place of business of both GSTIN being the same as well as the books of account were also maintained through the same bank account transaction for both GSTINs which is in teeth of the proviso of sub- Section 2 of the Section 25 of the CGST Act, 2017. 7. To decide the issue in hand, the pre-amended proviso to subsection 2 and after amendment carried out w.e.f. 1st February, 2019, are extracted hereunder: (2) A person seeking registration under this Act shall be granted a single registration in a State or Union territory: Pre amended proviso: Provided that a person having multiple business verticals in a State or Union territory may be granted a separat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued upon him. (ii) The communication at page 144 to the writ petition was on a different allegation and the show cause notice in Form GST-RFD- 08 which was not served upon the petitioner had no reasons or contraventions to which the petitioner could submit a reply; (iii) It was only after submission of petitioner s reply that the adjudicating officer proceeded to decide the refund application on grounds or alleged contraventions which were never part of the show cause notice and communicated to him; i.e. related to maintaining two GSTIN numbers one under RCM and the other under Forward charge mechanism with two different rates of GST to be charged upon the services being provided; (iv) It is submitted that maintaining of two GSTIN numbers is not impermissible either under the pre-amended proviso to subsection 2 of Section 25 or under the amended proviso; (v) Since petitioner is entitled to maintain two GSTIN registrations in view of the definition of business vertical the entire adjudication order rejecting the claim for refund is bad in law. 9. Learned counsel contended that the petitioner had duly explained in his defence reply that the amount of tax rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner regarding the absence of any specific contravention indicated in form GST-RFD-08 which was the basis for proceeding against the petitioner on his refund application. 11. Having heard learned counsel for the parties and after going through the documents available on record it appears that a show cause notice was issued to the petitioner on 17th May, 2021 on the application for refund filed by the petitioner under Section 54 of CGST Act, 2017 in respect of his Registration GSTIN No. 20AAACD2086J2ZZ. It further transpires that the petitioner herein refuted the allegation of the department given in the show cause notice vide his reply by clarifying among other things that returns in FORM GSTR-3B and FORM GSTR-1 have been correctly filed. However, interestingly, the order in original which was passed pursuant to the reply to the show cause notice did not deliberate with the content of reply but the adjudicating officer has proceeded to pass an order rejecting the refund application on the grounds which were never part of the original show cause notice as indicated in paragraph No.5 herein above. In other words, the show cause notice (Annexure-7) was of different allegation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Officer decided the refund application on the grounds which were not part of the show cause notice i.e. related to maintaining of two GSTIN number: one under RCM and other under forward charge mechanism (FCM) with two different rates of GST to be charged upon the services being provided. 13. Though the petitioner has argued on merits of the case but we do not feel it proper to give any finding on merits of the case as the impugned order of adjudication is bad in law for the reasons that it has been passed beyond the scope of show cause notice. It further transpires that even the order in appeal does not deliberate on this issue and simply confirmed the order in original. Thus, since the show cause notice is vague and cryptic in nature and order in original has been passed beyond the show cause notice, both are liable to be quashed and set aside. Consequently, the impugned show cause notice dated 17th May, 2021 and the consequent order in original dated 14.06.2021 and order in appeal dated 08.12.2021, are quashed and set aside. However, the revenue is at liberty to issue a fresh show cause notice and proceed in accordance with law. It is made clear that entire exercise sha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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