2025 (5) TMI 1356 - HC - GST

Failure to comply with the mandatory requirement of communication of details of tax interest and penalty in terms of subrule (1A) of Rule 142 of the CGST Rules 2017 before service of notice - illegal assumption of jurisdiction to impose penalty under Section 122(2)(b) of the GST Act 2017 -retrospective operation - determination of tax liability pertaining to the tax periods from July 2017 to March 2019 fell in error of law - invoking provisions of Articles 226 and 227 of the Constitution of India - sustainability of the Order-in-Original - HELD THAT - Since Mr. Avinash Kedia learned Junior Standing Counsel appears and waives issue of notice on behalf of Opposite Parties learned counsel appearing for the Petitioner is requested to serve adequate number of copies of the writ petition on him within three working days to enable him to obtain instructions. Since the learned Junior Standing Counsel has requested for obtaining instruction with respect to imposition of penalty in the context of amendment in sub-section (1A) of Section 122 of the CGST Act and consequences of non-communication of GST DRC-01A under Rule142(1A) as an interim measure it is directed that the Petitioner shall deposit 20% of the amount of tax as determined in Order-in- Original dated 31.01.2025 under Annexure-3 within a period of two weeks hence and furnish evidence thereof before the authority concerned. If such deposit is made within said period stipulated the Opposite Parties shall be restrained from taking coercive measure to enforce the demand raised in the impugned Order-in-Original (Annexure-3) till the next date.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Court in this matter are:

(a) Whether the statutory authority complied with the mandatory procedural requirement under sub-rule (1A) of Rule 142 of the CGST Rules, 2017, which mandates communication of details of tax, interest, and penalty (via Part-A of Form GST DRC-01A) before issuance of notice for assessment under Section 74 of the CGST/OGST Act;

(b) Whether the imposition of penalty under Section 122(2)(b) of the GST Act, 2017, without adherence to the procedural safeguards introduced by the amendment inserting sub-section (1A) in Section 122, is legally sustainable, particularly in respect of tax periods prior to the amendment's effective date;

(c) Whether the penal provisions under Section 122(2)(b) can be applied retrospectively to taxable events occurring before the amendment effective from 01.01.2021;

(d) The effect of non-compliance with the communication requirement under Rule 142(1A) on the validity of the assessment and penalty order;

(e) The procedural propriety and jurisdictional competence of the authority in passing the impugned Order-in-Original dated 31.01.2025 imposing penalty for tax periods from July 2017 to March 2019.

2. ISSUE-WISE DETAILED ANALYSIS

Issue (a): Compliance with communication requirement under Rule 142(1A) of the CGST Rules, 2017

Relevant legal framework and precedents: Rule 142(1A) of the CGST Rules, 2017, as amended by G.S.R. 639(E) dated 15.10.2020, mandates that before issuing a notice for proceeding with determination of tax liability under Section 74, the officer must communicate the details of tax, interest, and penalty ascertained to the person in Part-A of Form GST DRC-01A. This procedural safeguard ensures transparency and affords the taxpayer an opportunity to respond before initiation of assessment proceedings.

Court's interpretation and reasoning: The Court noted that prior to the amendment, such communication was a mandatory precondition. The petitioner contended that the authority failed to comply with this mandatory requirement, which goes to the root of the validity of the assessment order.

Key evidence and findings: The petitioner pointed out the absence of communication of the particulars of tax, interest, and penalty before the notice was issued, which was a statutory requirement under the amended Rule 142(1A).

Application of law to facts: The Court observed that failure to comply with this procedural requirement would vitiate the assessment process and render the order liable to be quashed.

Treatment of competing arguments: The Opposite Parties sought time to obtain instructions on this issue, indicating the complexity and necessity of detailed examination.

Conclusions: The Court recognized the importance of compliance with Rule 142(1A) and indicated that non-compliance could invalidate the assessment and penalty order.

Issue (b) and (c): Legality and retrospective application of penalty under Section 122(2)(b) of the GST Act after amendment inserting sub-section (1A)

Relevant legal framework and precedents: Section 122(2)(b) of the GST Act empowers the authority to impose penalty for certain offences. The Finance Act, 2020, inserted sub-section (1A) into Section 122, effective from 01.01.2021, introducing procedural safeguards for imposition of penalty. The amendment was notified via Notification No. 92/2020-Central Tax dated 22.12.2020.

Court's interpretation and reasoning: The petitioner argued that the penal provision being substantive in nature cannot be applied retrospectively to taxable events prior to the amendment's effective date. The Court acknowledged that imposing penalty under the amended provision for tax periods from July 2017 to March 2019, i.e., prior to 01.01.2021, would be erroneous.

Key evidence and findings: The impugned order imposed penalty under Section 122(2)(b) for tax periods predating the amendment, without authority to do so.

Application of law to facts: The Court recognized that retrospective application of substantive penal provisions is generally impermissible unless explicitly provided by legislature. The amended sub-section (1A) could not be invoked for taxable events preceding its commencement.

Treatment of competing arguments: The Opposite Parties sought instructions on the sustainability of penalty imposition under the amended provision for pre-amendment periods, indicating a nuanced legal question.

Conclusions: The Court indicated that penalty imposition under Section 122(2)(b) as amended could not be sustained for tax periods prior to 01.01.2021.

Issue (d): Effect of non-compliance with communication of GST DRC-01A on validity of assessment and penalty order

Relevant legal framework and precedents: The procedural safeguard under Rule 142(1A) aims to ensure that the taxpayer is adequately informed of the tax, interest, and penalty details before notice issuance, upholding principles of natural justice.

Court's interpretation and reasoning: The Court emphasized that failure to communicate the details as mandated would constitute a procedural irregularity affecting the tenability of the assessment and penalty order.

Key evidence and findings: The petitioner demonstrated non-communication of the requisite details prior to notice issuance.

Application of law to facts: The Court found that such non-compliance would render the order vulnerable to challenge and liable to be set aside.

Treatment of competing arguments: The Opposite Parties did not dispute the procedural requirement but sought further instructions.

Conclusions: The Court upheld the importance of strict adherence to procedural mandates and indicated that non-compliance would invalidate the order.

Issue (e): Jurisdictional competence and procedural propriety of the authority in passing the impugned Order-in-Original dated 31.01.2025

Relevant legal framework and precedents: The authority's jurisdiction to impose penalty under Section 122(2)(b) is subject to compliance with procedural safeguards under the GST Act and Rules. The amendment introducing sub-section (1A) in Section 122 is a substantive change affecting penalty imposition.

Court's interpretation and reasoning: The Court scrutinized the authority's jurisdiction to impose penalty for periods prior to the amendment and noted the absence of compliance with Rule 142(1A).

Key evidence and findings: The impugned order imposed penalty for tax periods July 2017 to March 2019, without communication of details as per Rule 142(1A) and before the amendment's effective date.

Application of law to facts