TMI Blog2022 (4) TMI 823X X X X Extracts X X X X X X X X Extracts X X X X ..... n (5), then he gets the benefit of sub-section (6) of Section 74 of the Act. The Form GST DRC 01 is in the form of a show cause notice, which is issued under sub-section (1) of Section 74 of the Act i.e. in accordance with Rule 142(1)(a) of the Rules, 2017. At the stage of an intimation under sub-section (5) of Section 74 in the Form GST DRC 01A, it is Rule 142(1A) which is applicable. Therefore, while issuing an intimation, the proper officer in the notice could not have said that failure on the part of the noticee may entail the consequence of recovery of the entire amount with penalty and interest - The intimation under sub-section (5) has to be strictly in Form GST DRC 01A. It is not a show cause notice. In the intimation, the dealer should be informed that if he fails to make the payment, the next step in the process will be issue of a show cause notice under sub-section (1) of Section 74 in accordance with the Form GST DRC 01. Once there is a show cause notice in the Form GST DRC 01 in accordance with Rule 142(1)(a) of the Rules to be read with sub-section (1) of Section 74, the same would ultimately lead to regular assessment proceedings with final assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner s case and after going into the validity and legality thereof be pleased to quash and set aside the impugned show cause notice dated 14.03.2022; (b) Your Lordships be pleased to issue a writ of mandamus or any other appropriate writ in the nature of mandamus ordering and directing the respondents to forthwith refrain from taking any further steps or proceeding pursuant to or in implementation of the impugned notice dated 14.03.2022 issued by respondent No.3; (c) That pending the hearing and final disposal of the above petition, this Hon ble Court be pleased to, stay the effect and operation of impugned notice dated 14.03.2022; (d) An ex-parte ad-interim relief in terms of prayer (c) above may kindly be granted; (e) Costs of the petition be provided for; and (f) Such other and further order or orders as may be deemed just and proper in the facts and circumstances of the present case may kindly be granted. 4. The facts giving rise to this writ application may be summarized as under: 5. The writ applicant has received an intimation of the tax ascertained as being payable under Section 74(1) and (5) resply of the GST Act, 2017 in the Form GST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... system generated 2-A/B and table 8 of GSTR 9 presented by you, you are not entitled to avail input tax credit of ₹ 14,06,55,810/-. The replies submitted by you and while looking at the system generated auto populated 2-A and 8-A by showing purchase of ₹ 441,25,75,002/- from ASTERPETAL TRADE SERVICES PRIVATE LIMITED GSTN 24AANCA7754P1ZX you have received input tax credit of ₹ 6,42,60,812/- SGST and ₹ 6,42,60,812/- CGST. And from MANMISH TRADERS PRIVATE LIMITED GST NO. 24AAGCM6660D2ZL showed purchase of ₹ 41,66,06,984/- and claimed tax credit of ₹ 60,67,092/- SGST and ₹ 60,67,092/- CGST. And as mentioned above in aggregate you showed a purchase of ₹ 4,82,91,81,986 from both the supplier and have claimed Input Tax Credit of ₹ 7,03,27,905/SGST and ₹ 7,03,27,905/- CGST aggregating to ₹ 14,06,55,810/-. Above referred both the vendor s business details and GST registration number detail is as follows:- (i) ASTERPATEL TRADE SERVICES PRIVATE LIMITED GSTN24AANCA7754P1ZX (Cancelled suo-moto) Date of Cancellation 31.03.2019 (The effective date of cancellation of your registration is 25.01.2018. In case, Registrati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se may be, section 74 shall be initiated in respect of any credit wrongly availed, whether wholly or partly. 3. CONCLUSION/DECISION: - Thus, as shown below, even though you were not eligible to claim input tax credit, you have obtained and have not paid input tax credit. Total payable tax 140655810 Interest 67514788 Penalty 140655810 Total 348826408 DETAILS OF PAYABLE TAX PAYABLE TAX INTEREST PENALTY PENALTY TOTAL CGST 70327905 33757394 70327905 174413203 SGST 70327905 33757394 70327905 174413203 TOTAL 140655810 67514788 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hearing to the dealer. Thereafter, the final assessment order would be passed fixing the liability of the dealer. 9. In such circumstances referred to above, Ms. Gohil prays that there being merit in her writ application, the same be allowed and the impugned intimation in Form GST DRC 01 be quashed and set aside. 10. Per contra, Mr. Sharma, the learned A.G.P. submitted that he would like to raise a preliminary objection as regards the very maintainability of the present writ application, as according to him, an intimation of tax in accordance with sub-section (5) of Section 74 of the Act in the Form GST DRC 01 cannot be challenged by way of a writ application. Mr. Sharma would submit that if the writ applicant wants to ignore the intimation in Form GST DRC 01, then he may do so, but, thereafter, a show cause notice under sub-section (1) of Section 74 of the Act would be issued. Once a show cause notice is issued, then the regular assessment proceedings would be undertaken and the final liability would be determined and fixed accordingly. 11. In such circumstances referred to above, Mr. Sharma prays that there being no merit in the present writ application, the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice under sub-section (1), pay the amount of tax along with interest payable under section 50 and a penalty equivalent to fifteen per cent. of such tax on the basis of his own ascertainment of such tax or the tax as ascertained by the proper officer and inform the proper officer in writing of such payment. (6) The proper officer, on receipt of such information, shall not serve any notice under sub-section (1), in respect of the tax so paid or any penalty payable under the provisions of this Act or the rules made thereunder. (7) Where the proper officer is of the opinion that the amount paid under sub-section (5) falls short of the amount actually payable, he shall proceed to issue the notice as provided for in sub-section (1) in respect of such amount which falls short of the amount actually payable. (8) Where any person chargeable with tax under sub-section (1) pays the said tax along with interest payable under section 50 and a penalty equivalent to twenty-five percent. of such tax within thirty days of issue of the notice, all proceedings in respect of the said notice shall be deemed to be concluded. (9) The proper officer shall, after considering the repre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one opportunity to make the payment towards tax. If he makes the payment under sub-section (5), then he gets the benefit of subsection (6). Sub-section (6) provides that the proper officer, on receipt of the information from the dealer about payment of the tax, would, thereafter, not proceed to serve any notice under sub-section (1) in respect of the tax so paid or any penalty payable under the provisions of the Act or the Rules made thereunder. 16. In the context of sub-section (5) and sub-section (6) of Section 74 of the Act, we shall now look into the Form GST DRC 01A and Form GST DRC 03 resply. 17. The Form GST DRC 01A is in two parts : Part A and Part B. The same reads thus: FORM GST DRC-01A Intimation of tax ascertained as being payable under section 73(5)/74(5) [See Rule 142 (1A)] Part A No.: .. Date: ... Case ID No. To GSTIN Name Address Sub.: Case Proceeding Reference No - Intimation of liability under section 73(5)/section 74(5) reg. Please refer to the above proceedings. In this regard, the amount of tax/ interest/penalty payable by you unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said liability is not acceptable and the submissions in thisregard are attached / given below: Authorised Signatory Name GSTIN .. Address Upload attachment 18. The Form GST DRC 03 reads as under: FORM GST DRC - 03 [See Rule 142(2) 142(3)] Intimation of payment made voluntarily or made against the Show Cause Notice (SCN) or statement 1. GSTIN 2. Name Auto. 3. Cause of payment drop down Audit, investigation, voluntarily, SCN, annual return, reconciliation statement, others (specify) 4. Section under which voluntary payment is made drop down 5. Details of show cause notice, if payment is made within 30 days of its issue Reference No. Date of issue 6. Financial Year 7. Details of payment made includin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the tax and interest in accordance with the provisions of sub-section (5) of Section 73 or, as the case may be, tax, interest and penalty in accordance with the provisions of sub-section (5) of section 74, or where any person makes payment of tax, interest, penalty or any other amount due in accordance with the provisions of the Act, whether on his own ascertainment or, as communicated by the proper officer under sub-rule (1A), he shall inform the proper officer of such payment in FORM GST DRC-03 and the proper officer shall issue an acknowledgement, accepting the payment made by the said person in FORM GST DRC-01. 21. Rule 142(3) reads thus: Notice and order for demand of amounts payable under the Act. 142(3). Where the person chargeable with tax makes payment of tax and interest under sub-section (8) of section 73 or, as the case may be, tax, interest and penalty under sub-section (8) of section 74 within thirty days of the service of a notice under sub-rule (1), or where the person concerned makes payment of the amount referred to in subsection (1) of section 129 within fourteen days of detention or seizure of the goods and conveyance, he shall intimate the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of his own ascertainment. If the dealer proceeds to avail the benefit of sub-section (5), then he gets the benefit of sub-section (6) of Section 74 of the Act. In other words, no show cause notice would be issued thereafter under sub-section (1) of Section 74 and the proceedings if any would be dropped. 24. Mr. Sharma, the learned A.G.P. may be justified in raising a preliminary objection as regards the very maintainability of the present writ application on the ground that the writ applicant could not have questioned the legality and validity of the intimation issued by the proper officer in Form GST DRC 01. The blunder committed by the department is at this stage. On one hand, the notice is termed as an intimation of tax ascertained as being payable under sub-section (5) of Section 74. Whereas, the intimation is issued in Form GST DRC 01. The Form GST DRC 01 is in the form of a show cause notice, which is issued under sub-section (1) of Section 74 of the Act i.e. in accordance with Rule 142(1)(a) of the Rules, 2017. At the stage of an intimation under sub-section (5) of Section 74 in the Form GST DRC 01A, it is Rule 142(1A) which is applicable. Therefore, while issuin ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
