TMI Blog2022 (12) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner and as held earlier, the first Respondent is the Proper Officer to proceed against the dealer under Sections 73 and 74 of the Act, more so, when the dealer falls within his territorial jurisdiction - the argument that the first Respondent could not have passed the Assessment Order basing on the said authorization, though appeared to be correct at the first blush, but on a close perusal of the record, coupled with the Notification given, we hold that there is no illegality in first Respondent assessing the case of the Petitioner. Whether the procedure followed by the authorities with regard to passing of the Order under Section 73 of the CGST Act read with Section 20 of the IGST Act is correct? - HELD THAT:- Under Rule 142, the Proper Officer shall serve along with the notice issued under section 52 or section 73 or section 74 or section 76 or section 122 or section 123 or section 124 or section 125 or section 127 or section 129 or section 130, a summary thereof electronically in FORM GST DRC-01. 30) Rule 142 (1A), as it stands today, state that the Proper Officer may , [which came into effect from 15.10.2020], before service of notice to the person chargeable with tax, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn. Apart from that, neither IGST nor CGST Act, anywhere prohibit making a single assessment under both the enactments. When the same Officer is authorized to assess the case of the dealer under IGST and SGST, we feel that there is nothing wrong in single assessment being made unless grave prejudice is show, which is not, in the case on hand. In-fact, the prejudice does not even appear to be inherent also in passing the single assessment order. This issue namely as to whether the turnovers falls outside the purview of Section 7 of the IGST and, as such, no tax under Section 5 of IGST can be levied by the first Respondent herein is a factual aspect, for which, this Court under Article 226 of the Constitution of India, cannot embark on investigating the same, more so, when a remedy of Appeal is available to the Petitioner. Hence, the argument that the Assessment Order is hit by Article 286 of the Constitution of India, cannot be gone into and answered in this Writ Petition. There are no merit in the Writ Petition. Accordingly, the Writ Petition is dismissed. - Writ Petition No. 22402 of 2022 - - - Dated:- 25-11-2022 - Honourable Sri Justice C.Praveen Kumar And Honourable Sr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on amounts received towards works executed by the Petitioner under VAT regime, on which GST is not attracted, on the ground that no documentary evidence is filed to show that these turnovers relate to VAT regime. (vi) The first Respondent also disallowed the alleged excess claim of ITC by rejecting the explanation furnished by the Petitioner, as it claimed excess ITC under IGST by mistake instead of claiming the same under CGST and SGST. (vii) The first Respondent also rejected the claim that TTD is a Government concern and that tax @18% is payable and not 12%, apart from imposing differential tax @ 6% on Works Contract executed by the Petitioner as Sub-Contractor of main contractor. 3) The said Order of the Assessing Authority came to be challenged on the following grounds, namely:- (i) the imposition of GST by the State of Andhra Pradesh on the Works executed in the State of Telangana by the Sister concern of the Petitioner, which is registered as a Dealer in the State of Telangana, is without jurisdiction, (ii) The Works executed in the State of Telangana amounts to intra-state/local supplies of Works Contracts within the State of Telangana in terms of Section 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment Pleader appearing for the Respondents, opposed the same contending that the Joint Commissioner, gave authorization to the first Respondent to inspect the books of accounts and since the Officer is also having territorial jurisdiction over the Petitioner, assessed the case of the Petitioner, more so, being a Proper Officer in terms of Notification No. 37, dated 30th June, 2017. (ii) He further submits that, any one of the Officer referred to in the Notification, in the same Circle, will get jurisdiction to assess the case of the Petitioner. In other words, according to him one of them would be the territorial Assessing Officer, having jurisdiction to assess the case of the Petitioner. (iii) He further submits that, no prejudice is caused to the Petitioner, as the Appeal against order passed by any of the three [03] Officers, mentioned in the Notification and also by the territorial Assessing Authority [second Respondent as claimed by the Petitioner], would lie only before the Joint Commissioner and there is no inter-se appeal between the three Officers. (iv) He further submits that, the argument of the Petitioner only makes us to presume that there was no work in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may exercise the powers and discharge the duties conferred or imposed under this Act on any other officer of central tax who is subordinate to him. (3) The Commissioner may, subject to such conditions and limitations as may be specified in this behalf by him, delegate his powers to any other officer who is subordinate to him. (4) Notwithstanding anything contained in this section, an Appellate Authority shall not exercise the powers and discharge the duties conferred or imposed on any other officer of central tax. 11) Section 73 (i) of C.G.S.T. Act, which falls under Chapter XV deals with Demands and Recovery is as under: (1) Where it appears to the proper officer that any tax has not been paid or short paid or erroneously refunded, or where input tax credit has been wrongly availed or utilised for any reason, other than the reason of fraud or any wilful-misstatement or suppression of facts to evade tax, he shall serve notice on the person chargeable with tax which has not been so paid or which has been so short paid or to whom the refund has erroneously been made, or who has wrongly availed or utilised input tax credit, requiring him to show cause as to why ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent from assessing the case of the Petitioner, more so, when the case of the Petitioner falls within the territorial jurisdiction of the first Respondent as well. Apart from that, it is also to be noted that, no prejudice would cause to the Petitioner, if the case of the Petitioner is assessed by any of the Officers, for the reason that, no interse appeal would lie against the Order passed by one Officer to the other Officer. On the other hand, the Assessment Order passed by any of the Officers can be challenged only before the Joint Commissioner, who is the Appellate Authority as contemplated under the Act. 18) The learned Counsel for the Petitioner submits that, the authorization was issued by the Joint Commissioner only to conduct inspection of the business records relating to Taxable person vide Form GST INS-1, dated 20.11.2019, and that no power was given to the first Respondent to assess the case of the Petitioner. 19) A perusal of Form GST INS-01 coupled with Rule 139 (1) would show that, the Officer to whom the authorization is given in Form GST-1S can only inspect and search the business records and also seize the same in terms of Rule 139. But, here is a case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are mentioned in the earlier notice. (5) The person chargeable with tax may, before service of notice under sub-section (1) or, as the case may be, the statement under sub-section (3), pay the amount of tax along with interest payable thereon under section 50 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) or, as the case may be, the statement under sub-section (3), in respect of the tax so paid or any penalty payable under the provisions of this Act or the rules made thereunder. 22) Rule 142 of the Central Goods and Services Tax Rules, 2017 [ C.G. S.T. Rules ] reads as under: 142. Notice and order for demand of amounts payable under the Act.- (1) The proper officer shall serve, along with the (a) notice issued under section 52 or section 73 or section 74 or section 76 or section 122 or section 123 or section 124 or section 125 or section 127 or section 129 or section 130, a summary thereof electronically in FORM GST DRC-01, (b) sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the provision of the Act and the Forms would clearly show that it cannot be show-cause notice. 28) It will be very much relevant to refer to Rule 142 of C.G. S.T. Rules, which states as under: 142. Notice and order for demand of amounts payable under the Act.- (1) The proper officer shall serve, along with the (a) notice issued under section 52 or section 73 or section 74 or section 76 or section 122 or section 123 or section 124 or section 125 or section 127 or section 129 or section 130, a summary thereof electronically in FORM GST DRC-01, (b) statement under sub-section (3) of section 73 or sub-section (3) of section 74, a summary thereof electronically in FORM GST DRC-02, specifying therein the details of the amount payable. (1A) The [proper officer may], before service of notice to the person chargeable with tax, interest and penalty, under sub-section (1) of Section 73 or subsection (1) of Section 74, as the case may be, [communicate] the details of any tax, interest and penalty as ascertained by the said officer, in Part A of FORM GST DRC-01A. 29) A reading of the above provisions makes it clear that, under Rule 142, the Proper Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aning thereby, that the Proper Officer shall , before service of notice under Sub-section 1 of Section 73 or 74, indicate the details of tax, interest and penalty in Form GST DRC-01A. 37) That being so, the question is, whether such Forms were issued? 38) As seen from the reference column, in the Order impugned, dated 05.05.2022, GST DRC-01A dated 05.10.2021, was issued, to which the taxable person sought 30 days time to file objections vide letter, dated 14.10.2021. On 05.11.2021, a reply came to be submitted by the taxable person in Part-B and ultimately a notice in FORM GST DRC- 01 was issued on 27.01.2022, followed by a notice of personal hearing on 02.03.2022, to which a reply was received in Form GST DRC-06 on 14.03.2022. After following the other mandatory requirements, the impugned Order came to be passed on 05.05.2022. Ergo, it is very much clear that, the procedure, as required under the Act, namely, issuance of Form GST DRC-01A, followed by a reply in Form GST DRC- 06, as contemplated under the Act, have been followed. 39) However, Sri. G. Narendra Chetty, learned Counsel appearing for the Petitioner, tried to contend that, the procedure, as contemplated under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter alia, contemplates that, the Officers appointed under the SGST Act are authorised to be the proper officers for the purposes of this Act, subject to such exceptions and conditions as the Government shall, on the recommendations of the Council notify. In the absence of any notification being placed on record, exempting the first Respondent from passing assessment order, it can be said, without any hesitation, that the Officer, who is competent to pass assessment under SGST, is also competent to assess the case of the assessee under IGST Act. In view of the above, it cannot be said that, the first Respondent is not competent to assess the case of the Petitioner under IGST Act. 46) The only other issue, which remains consideration, is whether a single Assessment Order can be passed for IGST, SGST and CGST? 47) It is to be noted that, except stating that single Assessment Order could not have been passed, no provision under law debarring the Authority from following such procedure has been placed on record. Further, the prejudice that is caused in passing single Assessment Order is also not shown. Apart from that, neither IGST nor CGST Act, anywhere prohibit making a single a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
