TMI Blog2021 (2) TMI 433X X X X Extracts X X X X X X X X Extracts X X X X ..... dverse decision is contemplated against such person. One opportunity to be provided to the writ applicant to appear before the respondent No.2 and make good his case - entire matter is remitted to the respondent No.2 for fresh consideration - application allowed by way of remand. - R/SPECIAL CIVIL APPLICATION NO. 994 of 2021 - - - Dated:- 4-2-2021 - HONOURABLE MR. JUSTICE J.B. PARDIWALA AND HONOURABLE MR. JUSTICE ILESH J. VORA Appearance: ADITYA R PARIKH(8769) for the Petitioner(s) No. 1 NOTICE SERVED BY DS(5) for the Respondent(s) No. 1,2,3,4 ORAL ORDER (PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA) 1. By this writ application under Article 226 of the Constitution of India, the writ applicant, a public limited company, has prayed for the following reliefs; (A) that this Hon'ble Court be pleased to issue a Writ of Certiorari or any other writ, order or direction under Article 226 of the Constitution of India after going into the validity and legality thereof quash the order dated 21.10.2020 (Annexure-A) issued by Respondent No.2. (B) that this Hon'ble Court be pleased to issue a Writ of Certiorari or any other appropriate writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccupy land is a supply of service under the SGST and CGST Acts of 2017. Further service provided by the assessee or your good self is covered under entry at serial No.16 (Heading No.9972, Real Estate Services) of Notification No.11/2017-Gujarat State Tax (Rate) dated 30.06.2017. Accordingly, real estate services are liable to tax at 9% SGST and 9% CGST. The assess in your good self has received consideration of ₹ 7,12,12,150/-. As per MOU and same value is consideration as taxable value of supply of services tax CGST Act. 01.07.2017 to 31.03.2018 ₹ 64,09,092/- and SGST Act 01.0.2017 to 31.03.218 ₹ 64,09,092/- interest of SGCT ₹ 38,45,453/- and ₹ 38,45,453/- of CGST Act. And also levied penalty of ₹ 64,09,092/- of SGST Act and ₹ 64,09,092/- CGST Act. 4. Being dissatisfied with the aforesaid order, the writ applicant is here before this Court with the present writ application. 5. At the outset, we should have declined to entertain this writ application as the impugned order dated 21st October, 2020 is an appealable order. The appeal would lie under Section 107 of the Act, 2017. However, it appears from the materials on record tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been filed on behalf of the respondent No.2. The same reads thus; 4. The petitioner in the present writ petition has challenged the legality and validity of the order dated 21.10.2020 passed by the respondent authorities principally on the ground that there is a gross violation of the principles of natural justice as no opportunity of personal hearing was ever granted before passing the impugned order. In this regard on 28.01.2021 this Hon'ble Court has directed the respondent authorities to file appropriate affidavit in reply on the aspect of grant of opportunity of personal hearing. 5. It is most respectfully submitted before this Hon'ble Court that the respondent authorities had issued notice in FORM DRC-01A to the petitioner on 27.01.2020. In the said notice the petitioner was called upon to submit reply on or before 10.02.2020. A copy of the notice dated 27.01.2020 is annexed hereto and marked as Annexure-A. Thereafter, another show-cause notice in FORM GST DRC-01 was issued upon the petitioner in 05.03.2020. In the said notice the petitioner was called upon to respond within a period of thirty days from the date of receipt of show-cause notice. A copy o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority vide its letter dated 24.12.20019. (Refer the attached letter provided by GIDC pertaining to this transaction). 4. Based on the above factual position as per MOU and GIDC clarification, it can be clearly inferred that impugned transaction between Alkem Laboratories Ltd., and Third Party were purely in the nature for Sale of Land / Transfer Title/ Interest and therefore falling under the scope of Entry-5 of Schedule III, which shall be treated neither as a supply of goods nor a supply of services as per Section 7 of the Central Goods and Services Tax Act, 2017 5. Further such transaction were non-taxable under pre-GST as well and the same treatment has been contained in Post-GST era. 6. As there is no supply of Goods and Services in the instant case in view of above facts and legal provision, liability of Tax, Interest and Penalty payment does not arises. 10. As the aforesaid reply was not found satisfactory, a show-cause notice came to be issued dated 5th March, 2020, calling upon the writ applicant to show-cause as under; You (M/s. Alken Laboratories Limited, GST No.24AABCA9521E123 for the principal place of business premises situated as Plot No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 75(4) and Section 75(5) of the Act reads as under; (4) An opportunity of hearing shall be granted where a request is received in writing from the person chargeable with tax or penalty or where any adverse decision is contemplated against such person (5) The proper officer, shall, if sufficient cause is shown by the person chargeable with tax, grant time to the said person and adjourn the hearing for reasons to be recorded in writing Provided that no such adjournment shall be granted for more than three times to a person during the proceedings 14. Section 78 of the Act reads thus; Section 78- Initiation of recovery proceedings. Any amount payable by a taxable person in pursuance of an order passed under this Act shall be paid by such person within a period of three months from the date of service of such order failing which recovery proceedings shall be initiated; Provided that where the proper officer considers it expedient I the interest of revenue, he may, for reasons to be recorded in writing, require the said taxable person to make such payment within such period less than a period of three months as may be specified by him. 15. A per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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