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GST - Case Laws
Showing 281 to 300 of 11326 Records
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2024 (3) TMI 1027
Reversal/ Refund of the input tax credit - Principles of Estoppel / principle of res judicata - withdrawal of earlier petition - HELD THAT:- In the instant case, it is noted that there was no offer made by the respondents calling for petitioner to come for an amicable settlement. It appears that at the time of hearing of the matter when the bench was not agreeing with the petitioner, petitioner unconditionally sought to withdraw the petition. The observation is being made keeping in view the last line of the last paragraph of the order where the Court had specifically clarified that no liberty has been granted to the petitioner is clearly indicates that when the bench were not agreeing with the petitioner, petitioner sought to unconditionally withdraw the petition. Further, this Court has also noticed that the director of the petitioner was not joining investigation and as such, the department was constrained to take the coercive steps.
The petitioner having unconditionally withdrawn the earlier petition and liberty being specifically declined to the petitioner, the petitioner is precluded from filing the present petition seeking the same relief which was earlier withdrawn by the petitioner. No doubt petitioner had withdrawn the proceedings pending investigation. However the said qualification would have only applied in case the investigation had exonerated the petitioner. In the instant case, the investigation has found petitioner culpable and accordingly, a show cause notice has been issued to the petitioner which is pending adjudication.
The present petition is barred on the principle of the issue of estoppel and as such the petition is not maintainable and same is consequently dismissed.
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2024 (3) TMI 1026
Violation of principles of natural justice - impugned order does not take into consideration the reply submitted by the petitioner and is a cryptic order - HELD THAT:- The observation in the impugned order dated 29.12.2023 is not sustainable for the reasons that the reply filed by the petitioner is a detailed reply. Proper Officer had to at least consider the reply on merits and then form an opinion whether the reply was unsatisfactory. He merely held that the reply is unsatisfactory which ex-facie shows that Proper Officer has not applied his mind to the reply submitted by the petitioner - Further, if the Proper Officer was of the view that the reply is unsatisfactory and further details were required, the same could have been specifically sought from the petitioner. However, the record does not reflect that any such opportunity was given to the petitioner to clarify its reply or furnish further documents/details.
The impugned order records that petitioner’s reply is not satisfactory. Proper Officer is directed to intimate to the petitioner details/documents, as maybe required to be furnished by the petitioner. Pursuant to the intimation being given, petitioner shall furnish the requisite explanation and documents - the matter is liable to be remitted to the Proper Officer for re-adjudication. Accordingly, the impugned order dated 29.12.2023 is set aside. The matter is remitted to the Proper Officer for re-adjudication.
Petition disposed off by way of remand.
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2024 (3) TMI 1025
Rejection of petitioner’s application for amendment of the registration, namely, change in address of the petitioner - no opportunity of a hearing was granted to the petitioner before the order is passed - violation of principles of natural justice - HELD THAT:- On a plain reading of Section 28, it is clear that sub-section (1) is an obligation of every registered person and a person to whom a Unique Identity Number (UIN) has been assigned to mandatorily inform the proper officer of any changes in the information furnished at the time of registration or subsequent thereto, in the form as prescribed. Sub-section (2) thereof provides that the proper officer may on the basis of information furnished under sub-section (1) or as ascertained by him, approve or reject amendments in the registration particulars in such manner and within such period as may be prescribed.
The mandate of proviso below sub-section (2) of Section 28 as applied to the present facts brings about a consequence that the impugned order would be required to be held to be in breach of sub-section (2) of Section 28 inasmuch as the petitioner was not granted an opportunity of being heard before the impugned order was passed. Such action on the part of respondent no. 3 clearly breached the mandate of proviso below sub-section (2) of Section 28. On such count alone, the impugned order would be rendered bad and illegal.
This apart, there are serious consequences which are brought about in rejection of an application for amendment. The impugned order also cannot be sustained for the reason that no reasons whatsoever are furnished in rejecting the petitioner’s application for amendment of the registration. It is well settled that in passing any quasi-judicial order, necessarily reasons are required to be attributed, as the reasons would not only demonstrate an application of mind by the concerned officer in taking the decision but also it would enable the person whose application is rejected to know as to what were the reasons which weighed with the authority in rejecting the application. Thus, in the absence of any reason, any quasi-judicial order would be rendered arbitrary, which the law would not recognize to be a valid order.
There can be no two opinions that the impugned order dated 3 November, 2023 would be required to be quashed and set aside - Petition allowed.
Suspension of registration of the petitioner and issuing show cause notice for cancellation of the registration - blocking of Input Tax Credit of the petitioner - HELD THAT:- There appears to be much substance in the contentions as urged on behalf of the petitioner. It appears that the basis for suspension of the petitioner’s registration is on the very issue on the petitioner’s place of business, which was subject matter of the amendment application filed by the petitioner. Such amendment application being rejected, has already been set aside by us by the order passed in the aforesaid Writ Petition. Sofar as the blocking of ITC is concerned, the same has clearly arisen from such issues on the place of business of the petitioner in regard to which an amendment application was filed by the petitioner to amend the registration.
Respondent no. 3 needs to pass an order on the application of the petitioner for amendment of registration within a period of two weeks and subject to the orders which may be passed thereon further appropriate course of action can be adopted as may be permissible in law on any suspension of the petitioner’s registration, as also on the blocking of the ITC if so necessitated - thus, insofar as the show cause notice dated 20 December, 2023 issued to the petitioner by respondent no. 3 is concerned in regard to the cancellation of the registration and considering the reasons as set out in the show cause notice, the fate of the same would certainly depend upon on the orders which respondent no. 3 would intend to pass on the petitioner’s amendment application.
Petition disposed off.
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2024 (3) TMI 1024
Validity of show cause notice/assessment orders issued by the respondent-GST Department - demand of GST on royalty paid to the respondent-Mining Department towards mining lease - HELD THAT:- In Sudershan Lal Gupta’s case [2022 (10) TMI 43 - RAJASTHAN HIGH COURT], the Division Bench of this Court has held that the action of respondents with regard to imposition of GST on royalty is not liable to be interfered with.
This writ petition is dismissed in terms of the orders passed by this Court in Sudershan Lal Gupta’s case - the stay petition also stands dismissed.
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2024 (3) TMI 1023
Grant of bail - registration under GST obtained on the basis of forged documents - fraudulent evasion of tax - HELD THAT:- The petitioner is directed to be released on bail subject to fulfilment of conditions imposed - bail application allowed.
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2024 (3) TMI 969
Determination of tax u/s 73(9) of the CGST/SGST Act - petitioner submits that the order is passed merely on the representation of the petitioner without giving any opportunity of oral hearing to the petitioner - violation of principles of natural justice - HELD THAT:- The petitioner is entitled for an opportunity of hearing before determination of any tax even under Section 73(9) of the CGST/SGST Act.
The impugned order dated 29.12.2023, is hereby set aside. The matter is remanded back to the appropriate authority to pass a fresh order after giving opportunity of personal hearing to the petitioner - Petition allowed by way of remand.
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2024 (3) TMI 968
Seeking grant of bail - fraudulent availment and passing of input tax credit of G.S.T, by preparing fake invoices without any actual supply of goods by several firms created, managed and run by the applicant - creation of a number of bogus firms for the purpose of issuing fake invoices - HELD THAT:- Perusal of the provisions contained under Section 73 and 74 of the CGST Act would reveal that a mechanism has been provided therein with regard to the determination of tax not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilized by reason of fraud or any wilfull mis-statement or suppression of facts. Section 74 of the CGST Act provides for assessment of tax by the proper officer by issuing a notice to the assesee, however, sub-section 11 of Section 74 of the CGST Act would suggest that if the tax, which has been calculated along with the interest payable or the penalty is deposited, all proceedings in respect of the said notice shall be deemed to be concluded - it may be inferred that even if all the tax liability including penalty, etc. has been deposited, it would be only the 'notice' which would be discharged and the proceedings with regard to Section 132 of the CGST Act shall remain alive. Thus, there seems force in the submissions made by learned counsel for the Department that the process of prosecution and assessment may go on simultaneously.
The arrest of the applicant has not been done for his non cooperation in the investigation or for further investigation. Nowhere it is stated that the applicant while at liberty may hinder the smooth progress of investigation and in this order it has also not been mentioned as to why the applicant is being arrested, which was required to be stated.
The requirement under sub-section (1) of section 69 of CGST Act is reasons to believe that not only a person has committed any offence as specified but also as to why such person needs to be arrested. From a perusal of the reasons recorded by the Principal Additional Director General, it is reflected that no incident has been mentioned therein recording any act of the applicant or his conduct of threatening any witness or even of not co-operating with the investigation or of fleeing from investigation. It is true that economic offences constitute a class apart and need to be visited with a different approach in the matter of bail, because such offences pose serious threat to the financial health of the country, but there has to be a sound reason or belief for curtailing the liberty of a person, specially in the offences punishable with up to seven years of imprisonment.
Keeping in view the fact that applicant has appeared before the department on 30, 31 January 2024 and on 01st February and his statements have been recorded on these days and he was arrested on 2nd February, 2024 and produced before the magistrate and no custody remand was sought by the department and it was after many days i.e. on 26.02.2024 the department has taken the permission from the Court concerned for interrogation of the applicant in jail and also that applicant has retracted his confessional statements and in the orders of arrest no reason has been mentioned as to why after recording of the statements of the applicant for many days his arrest is required and also keeping view that applicant is in jail in this case since 02.02.2024 and investigation appears to have reached an advanced statge and nothing has been shown before this Court which may justify the further detention of the applicant in prison and also considering that the alleged offence is punishable with up to 5 years maximum punishment and still no formal accusation in the form of FIR or complaint has been filed by the department and also keeping in view that in such circumstances continuing the detention of the petitioner may not at all be justified and it appears justified for this court to strike a fine balance between the need for further detention of the applicant when even custodial interrogation has not been claimed at all by the Department and considering the right of an accused to personal liberty, applicant may be released on bail, however subject to certain conditions.
Let the accused/applicant- Deepanshu Srivastava involved in above-mentioned case, be released on bail on his furnishing a personal bond with two sureties in the like amount to the satisfaction of the court concerned subject to fulfilment of conditions imposed - bail application allowed.
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2024 (3) TMI 967
Reversal of ITC - wrongful availment of Input Tax Credit (ITC) on purchase of Car - impugned order was issued in view of the respondent not being aware of the reversal in the GSTR 3B return - HELD THAT:- The petitioner has placed on record the GSTR 3B return for the month of April in the assessment year 2023-2024. Such return indicates the reversal of ITC to the extent of Rs. 73,690/- each towards CGST and SGST. On examining the impugned order, it is evident that such impugned order proceeds on the basis that ITC of Rs. 73,690/- each towards CGST and SGST was wrongly availed of. In other words, the said order proceeds on the basis that ITC was not reversed. In light of documents placed on record by the petitioner, the said order requires reconsideration.
The impugned order dated 11.07.2023 is quashed and the matter is remanded for reconsideration. The petitioner is permitted to file a reply to the show cause notice dated 19.04.2023 and to submit all relevant documents along with such reply.
Petition disposed off by way of remand.
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2024 (3) TMI 966
Validity of assessment order - fraudulent availment of Input Tax Credit (ITC) - documents produced by the petitioner were disregarded - issuance of fake invoices - HELD THAT:- The documents produced by the petitioner along with the reply to intimation and reply to show cause notice were disregarded and the assessing officer reproduced the statements from the show cause notice. Since there was no application of mind, the impugned assessment order is not sustainable.
The impugned assessment order dated 23.08.2023 is quashed and the matter is remanded for re-consideration. After providing a reasonable opportunity to the petitioner, including a personal hearing, the assessing officer is directed to issue a fresh assessment order within two months. The petitioner is granted leave to submit additional documents to establish that the availment of ITC was in order.
Petition disposed off.
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2024 (3) TMI 965
Violation of principles of natural justice - impugned order passed without taking into consideration the reply submitted by the petitioner and is a cryptic order - ex-parte demand - HELD THAT:- The observation in the impugned order is not sustainable for the reasons that the reply filed by the petitioner is a detailed reply, however the impugned order records that “neither filed any reply nor appeared in person”. Proper Officer had to at least consider the reply submitted by the Petitioner on merits and then form an opinion. He merely held that the no reply has been filed which ex-facie shows that Proper Officer has not applied his mind to the reply submitted by the petitioner.
The order cannot be sustained, and the matter is liable to be remitted to the Proper Officer for re-adjudication. Accordingly, the impugned order dated 29.11.2023 is set aside. The matter is remitted to the Proper Officer for re-adjudication.
Petition disposed of by way of remand.
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2024 (3) TMI 964
Violation of principles of natural justice - impugned order does not take into consideration the reply submitted by the petitioner and is a cryptic order - demand alongwith penalty - HELD THAT:- Perusal of the Show Cause Notice shows that the Department has given separate headings under declaration of output tax, excess claim Input Tax Credit, ITC to be reversed on non-business transactions & exempt supplies and under declaration of ineligible ITC. To the said Show Cause Notice, a detailed reply was furnished by the petitioner giving full disclosures under each of the heads - The observation in the impugned order dated 23.12.2023 is not sustainable for the reasons that the reply filed by the petitioner is a detailed reply. Proper Officer had to at least consider the reply on merits and then form an opinion whether the reply was unsatisfactory, incomplete and not duly supported by adequate documents. He merely held that the reply is not clear and unsatisfactory which ex-facie shows that Proper Officer has not applied his mind to the reply submitted by the petitioner.
Further, if the Proper Officer was of the view that the reply is unsatisfactory and if any further details were required, the same could have been specifically sought from the petitioner. However, the record does not reflect that any such opportunity was given to the petitioner to clarify its reply or furnish further documents/details.
The matter is liable to be remitted to the Proper Officer for re-adjudication. Accordingly, the impugned order dated 23.12.2023 is set aside. The matter is remitted to the Proper Officer for re-adjudication - Proper Officer is directed to intimate to the petitioner details/documents, as maybe required to be furnished by the petitioner. Pursuant to the intimation being given, petitioner shall furnish the requisite explanation and documents. Thereafter, the Proper Officer shall re-adjudicate the show cause notice after giving an opportunity of personal hearing and shall pass a fresh speaking order in accordance with law within the period prescribed under Section 75(3) of the Act.
Petition disposed off.
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2024 (3) TMI 963
Retrospective cancellation of GST registration of petitioner - SCN does not specify any cogent reason - violation of principles of natural justice - HELD THAT:- In terms of Section 29(2) of the Act, the proper officer may cancel the GST registration of a person from such date including any retrospective date, as he may deem fit if the circumstances set out in the said sub-section are satisfied. Registration cannot be cancelled with retrospective effect mechanically. It can be cancelled only if the proper officer deems it fit to do so. Such satisfaction cannot be subjective but must be based on some objective criteria.
It is important to note that, according to the respondent, one of the consequences for cancelling a taxpayer’s registration with retrospective effect is that the taxpayer’s customers are denied the input tax credit availed in respect of the supplies made by the taxpayer during such period. Although, it is not considered apposite to examine this aspect but assuming that the respondent’s contention in required to consider this aspect while passing any order for cancellation of GST registration with retrospective effect. Thus, a taxpayer's registration can be cancelled with retrospective effect only where such consequences are intended and are warranted.
In view of the fact that Petitioner does not seek to carry on business or continue the registration, the impugned order dated 07.07.2023 is modified to the limited extent that registration shall now be treated as cancelled with effect from 26.07.2022 i.e., the date when the Petitioner closed down his business activities. Petitioner shall make the necessary compliances as required by Section 29 of the Central Goods and Services Tax Act, 2017.
Petition disposed off.
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2024 (3) TMI 962
Retrospective cancellation of GST registration of petitioner - petitioner could not respond to the SCN as the petitioner could not access the GST portal - HELD THAT:- The impugned order dated 11.12.2023 has been passed merely on the ground that no reply has been received from the taxpayer - It is not in dispute that once the registration is cancelled retrospectively, the taxpayer is not in a position to access the portal; become aware of any notice or respond thereto.
In the instant case, since the GST portal shows that the registration of the petitioner has been cancelled retrospectively with effect from 01.07.2017, petitioner would not have been able to receive the show cause notice or access the portal to become aware of any show cause notice or respond thereto.
Since both the petitioner as well as respondent want the registration to be cancelled, though for different reasons, the interest of justice requires that the registration of the petitioner be deemed to be cancelled with effect from 01.01.2018 i.e., the date of the application filed by the Petitioner seeking cancellation of the GST registration - the impugned order dated 11.12.2023 is not sustainable - petition disposed off.
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2024 (3) TMI 961
Validity of assessment order - alleged discrepancies in returns filed by the petitioner - difference between the amounts indicated in the notice in Form ASMT-10 and the amounts specified in the show cause notice - HELD THAT:- On examining the notice in Form ASMT-10, the said notice pertains to financial year 2017-2018. The abstract of demand proposed therein is for an aggregate sum of Rs. 1,37,33,386.62 comprising a demand of Rs. 71,59,663.28 towards IGST, a sum of Rs. 32,86,861.67 towards SGST and a sum of Rs. 32,86,861.67 towards CGST. Upon receipt of the petitioner's reply dated 22.09.2023, by order in Form ASMT-12 dated 27.09.2023, the respondents concluded that the reply was satisfactory and no further action is required.
In these circumstances, it is necessary to examine the impugned assessment order to verify whether the same demand was resurrected. On examining the impugned assessment order, it is found that the confirmation of demand relates to the same assessment period and the same amounts towards SGST, CGST and IGST. The only difference is that interest and penalty has been imposed thereon to arrive at the aggregate sum indicated therein. Upon issuance of an order in Form ASMT-12 recording that no further action is required, the continuation of proceedings culminating in the impugned assessment order is undoubtedly unsustainable.
The impugned assessment order is quashed - Petition closed.
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2024 (3) TMI 960
Denial of Input Tax Credit - Disallowance on the ground that the details submitted in the petitioner's return did not tally with that in the GSTR-2A return - HELD THAT:- The documents on record, such as invoice dated 20.09.2017 and the GSTR return of Kirthi Enterprises, prima facie indicate that the GSTIN of Premier Corporation was wrongly mentioned by Kirthi Enterprises in the return. If that is indeed the case, the petitioner would be unjustly deprived of ITC. In order to provide the petitioner with an opportunity to redress this grievance, interference with the impugned order is called for.
The impugned order dated 25.08.2023 is quashed and the matter is remanded to the assessing officer. The assessing officer is directed to provide a reasonable opportunity to the petitioner, including a personal hearing, and thereafter issue a fresh assessment order within a period of two months thereafter. It is also open to the petitioner to file an appropriate petition, if necessary, to set right the error complained of by the petitioner.
Petition disposed off.
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2024 (3) TMI 903
Breach of principles of natural justice - Validity of assessment order - mismatch between the GSTR 3B returns filed by the petitioner and the auto-populated GSTR 2A returns - HELD THAT:- The documents on record disclose that the liability pertains to alleged mismatch between the GSTR 3B returns of the petitioner and the auto-populated GSTR 2A returns. In recognition of difficulties faced in this regard, Circular No.183 was issued. The petitioner has also placed on record a certificate from the Chartered Accountant with regard to the reason for disparity between the above mentioned returns. Although the petitioner did not respond to the notices and participate in the assessment proceedings, the above facts and circumstances justify interference with the impugned orders, albeit by putting the petitioner on terms.
The impugned assessment orders are quashed and all these matters are remanded for reconsideration subject to the condition that the petitioner remits 10% of the disputed tax demand in respect of each assessment period within a period of 15 days from the date of receipt of a copy of this order - Petition disposed off.
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2024 (3) TMI 902
Validity of Assessment / Demand Order - tax liability with interest and penalty - turnover on Pan-India basis - Services of transportation of goods - Notification No.13/2017 - GST is leviable on the recipient of services on reverse charge basis - non application of mind - HELD THAT:- Although the petitioner had submitted the balance sheet and ITR details, it is evident from the records, assessing officer recorded findings contrary to the documents on record. It is also noticeable that in the penultimate paragraph at page 63, the assessing officer notices that the all India balance sheet discloses other income of Rs. 20,05,359/-. After noticing such other income, in the concluding table, tax liability with interest and penalty is imposed in respect of the turnover which, according to the petitioner, is taxable entirely on RCM basis.
Thus, the impugned assessment order is quashed and the matter is remanded for re-consideration. The petitioner is permitted to re-submit all relevant documents to the assessing officer within fifteen days from the date of receipt of a copy of this order.
W.P. is disposed of on the above terms.
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2024 (3) TMI 901
Violation of principles of natural justice - SCN does not give any reasons for cancellation - Appeal of the Petitioner seeking restoration of the GST registration has been dismissed solely on the ground that the same is barred by limitation - HELD THAT:- In terms of Section 29(2) of the Central Goods and Services Tax Act, 2017, the proper officer may cancel the GST registration of a person from such date including any retrospective date, as he may deem fit if the circumstances set out in the said sub-section are satisfied. The registration cannot be cancelled with retrospective effect mechanically. It can be cancelled only if the proper officer deems it fit to do so. Such satisfaction cannot be subjective but must be based on some objective criteria.
It is important to note that, according to the respondent, one of the consequences for cancelling a taxpayer’s registration with retrospective effect is that the taxpayer’s customers are denied the input tax credit availed in respect of the supplies made by the taxpayer during such period. Although, it is not considered apposite to examine this aspect but assuming that the respondent’s contention in this regard is correct, it would follow that the proper officer is also required to consider this aspect while passing any order for cancellation of GST registration with retrospective effect. Thus, a taxpayer’s registration can be cancelled with retrospective effect only where such consequences are intended and are warranted.
The order dated 19.04.2022 cannot be sustained and is accordingly set aside. The GST registration of the petitioner is restored - petition disposed off.
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2024 (3) TMI 900
Violation of principles of natural justice - Defective SCN proposing to cancel the GST registration - SCN does not mention the name and designation of the concerned officer who has issued the same - SCN has not been signed by the proper officer but bears the digital signatures of Goods and Service Tax Network - HELD THAT:- A perusal of show cause notice dated 19.02.2024 shows that the same has been issued on the ground that registration has been obtained by means of fraud, willful misstatement or suppressing of facts. The notice is unclear as to which of the ground applies i.e. fraud, willful misstatement or suppressing of facts. The notice neither bears the name and designation nor the signatures of the issuing authority - As per the petitioner, notice was signed by the Goods and Services Tax Network. Further, we note that the notice states that the noticee is to refer to supporting documents attached to have case specific details, however, admittedly, no such documents were attached with the notice.
Rule 21A of the Central Goods and Services Tax Act, 2017, requires that the person who is alleged to be in contravention shall be intimated in Form GST REG 31 electronically on the common portal or by sending the communication to the e-mail address provided at the time of registration or as amended from time to time - Form GST REG 31 admittedly has not been uploaded on the portal or sent electronically over e-mail to the petitioner but is stated to have been sent to the petitioner by physical mail, which cannot be a mode of service, as prescribed under Rule 21A. In any event, Form that has been produced in Court today, is not the show cause notice, which was sent to the petitioner.
In view of the above impugned show cause notice dated 19.02.2024 as well as Form GST REG 31 also dated 19.02.2024 are set aside - Petition allowed.
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2024 (3) TMI 899
Demand - interest - lower Input Tax Credit (ITC) - Petitioner was unaware of proceedings commencing from the issuance of an intimation - show cause notice served on the petitioner by post and not merely uploaded on the GST portal - HELD THAT:- On perusal of the impugned assessment order, it is evident that the petitioner availed of a lower amount as ITC than the amount reflected in the auto-populated GSTR 2A return. In those circumstances, the conclusion that the petitioner wrongly availed of ITC indicates non application of mind. As regards the interest liability for belated filing of returns, the evidence on record reflects that the petitioner remitted sums of Rs. 3,97,353/- each towards CGST and SGST on 06.03.2024. In these circumstances, the impugned order calls for interference.
Therefore, the impugned assessment order is quashed and the matter is remanded to the assessing officer for reconsideration. The petitioner is permitted to file a reply to the show cause notice dated 24.07.2023 within a period of two weeks from the date of receipt of a copy of this order.
These writ petitions are disposed of on the above terms. There will be no order as to costs. Consequently, connected miscellaneous petitions are closed.
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