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2021 (4) TMI 366 - HC - GSTRefund of the amounts paid during investigation - remittances made by the petitioner during investigation - self- ascertainment - Section 74(5) of GST Act - HELD THAT:- Section 74(5) is a statutory sanction for advance tax payment, pending final determination in assessment. This is contrary to the scheme of assessment set out under Section 74. Records were summoned to examine whether there was an ascertainment in this case. The records revealed the tabulation of instalments furnished by the assessee at the time of recording of statement and out of which the first two instalments have been paid. These, according to Mr.Sundareswaran constitute self-ascertainment and trigger the provisions of Section 74(5) and (7) - Had this been the position, the records must contain material to show that (i) the assessee accepts the ascertainment made by it and (ii) the revenue has applied its mind and arrived at the position that the self-ascertainment by the assessee is inadequate. However, statement recorded at the time of search admitting GST liability and setting the scheme of instalments have been retracted by the petitioner on 05.11.2019 and the petitioner has consistently and vehemently been contested the liability to tax. With this, the requirement of ‘ascertainment’ under Section 74(5), fails. The ascertainment contemplated under Section 74(5) is of the nature of self-assessment and amounts to a determination by it which is unconditional, and not one that is retracted as in the present case. Had such ascertainment/self-assessment had been made, there would be no further proceedings contemplated, as Section 74(6) states that with ascertainment of demand in Section 74(5), no proceedings for show cause under Section 74(1) shall be issued. In this case, enquiry and investigation are on-going, personal hearings have been afforded and both the parties are fully geared towards issuing/receiving a show cause notice and taking matters forward. The mandamus as sought for by the petitioner is granted. The amount of ₹ 2.00 crores collected shall be refunded to the petitioner within a period of four (4) weeks - Petition allowed.
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