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2023 (6) TMI 183 - HC - GSTSeeking refund the amount, which was recovered illegally from the petitioner - no GST DRC-04 has been issued by respondent No. 3 - amount recovered by the respondents without passing any adjudicating order or following any procedure under Sections 73/74 of the Act - HELD THAT:- In the facts of the present case, after the search was conducted on 25.02.2021, amount of Rs. 35,73,147/- (Tax of Rs. 29,48,601/-, interest of Rs. 1,82,255/- and penalty of Rs. 4,42,291/-) was deposited by the petitioner under Section 74 (5) of CGST Act, 2017. As per Rule 142 (2) of the CGST Rules, when a payment is made in FORM GST DRC-03, the proper officer has to issue acknowledgment, accepting the payment made by the said person in FORM GST DRC-04. In the present case, the said payment was made way back on 26.02.2021. Till date, neither they have issued FORM GST DRC-04 nor issued any notice under Section 74 (1) of the CGST Act. The respondents have not followed the Govt. instruction No. 01/2022-23 dated 25.05.2022 (Annexure P-10) issued by the CBIC. In these instructions, it is clarified that there is no bar on the taxpayers for voluntarily making the payments on the basis of ascertainment of their liability on non-payment/short payment of taxes before or at any stage of such proceedings. It is the duty of the officer to inform the taxpayers regarding the provisions of voluntary tax payment through DRC- 03. However, in the present case, as per these instructions, the petitioner has deposited the amount of Rs. 35,73,147/-, but the officer has not issued DRC-03 till date. Neither the department has followed the provisions of Rule 142 (2) of the CGST Rules nor has issued any notice under Section 74 (1) of the CGST Act. The respondents are directed to return the amount in question to the petitioner along with simple interest at the rate of 6% per annum from the date of deposit till the payment is made - Petition allowed.
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