TMI Blog2023 (3) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... ructions which received the attention of Delhi High Court which also frowned upon the action of the authority by questioning its non-fulfillment of one of the directions, (direction No.2) contained in Bhumi Associates. as the instructions had permitted making of voluntarily payments of filing DRC 03 on the basis of ascertainment of their liability on non payment/short payment of taxes before or at any stage of proceedings. The only safeguard is of the tax officers to inform the tax payers regarding the provisions of voluntary tax payments through DRC-03. These instructions surely are not keeping in pace with the directions issued in toto. They being binding in nature even though issued at an interim stage everywhere in sur-rejoinder, the officer concerned has referred to them as the observations. This is an apparent case where scant regard is shown to the interim directions of this Court which have so far not been challenged. Having issued the instructions with regard to the same by No.01/2022-23 on 25th May, 2022, this disregard on the part of the officer concerned is required to be viewed with little seriousness, what has been offered thereafter, is of filling up of the form f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment along with bill and E-way bill generated by the petitioner s firm. The transportation is being done by M/s. Aarya Transport Company. Petitioner s firm had provided access to all records during the course of search. The summons was served upon one of the partners under Section 17 which mentioned the time 10.35 pm. The explanation since was not satisfactory as per the officers at around 1 00 O clock in the night on 12th February, 2022. The officers forced the petitioner to login to GST portal using the personal laptop. The logins was registered with mobile number of son of the partner who was at Mumbai. 5. It is alleged that respondent No.1 had forcibly reversed the ITC of GST CGST lying in the electronic credit ledger to the tune of Rs. 18,84,150/- and Rs.18,84,150/- after reversing the credit of ITC. It proceeded to file Form DRC-03 for which it had needed OTP which are sent to the partner s son. 6. According to the petitioner, he had not volunteered that in fact was forced to reverses after reversing the credit ledger at 1.09 a.m. The From GST DRC-03 on 12th February, 2022 was filled-in. The petitioner has heavily relied upon the group of petitions being Specia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s from adopting any coercive measures without issuing any show cause notice as required under the Act to compel the petitioner to pay further tax dues which are disputed by the petitioner-frim and further be pleased to direct the respondent-authorities to refund the amount of Rs.37,68,300/- recovered by reversing the Input Tax Credit on 12.2.2022 through DRC-03 paid under protest and coercion; (C) Your Lordships may be pleased to grant ex-parte ad interim order in favour of the petitioner herein in terms of prayer clause A and B hereinabove; (D) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case. 8. The affidavit-in-reply is filed on behalf of respondent No.1 where, it is denied all the averments, statements and submissions made in the petition. It is denied that the team of officers had violated any provisions of law while inspecting the premises declared by the petitioner as Principle Place of Business . It is say of the petitioner that some information was received for the officer to report back after completion of inquiry and its outcome. The officer was authorized by the compe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resultant into the penalty is also reflected. To urge eventually that petition being bereft of any merits deserves no entertainment. 12. In affidavit-in-rejoinder it is urged that the respondent is lying that the petitioner was not coerced to pay the tax. There was no question of reversing the ITC out of his own volition. The petitioner had asked the Chartered Accountant to reverse the credit which was denied by the Chartered Accountant. Respondent took the laptop of his Chartered Accountant and pressed a call to his son for getting the one time password which is required to file Form GST DRC-03 and that call recorded by an automatic feature in smartphone of his son and entire transcript of the call had been placed on record of intervening night of 11.2.2022 and 12.2.2022, which according to the petitioner, makes it clear that respondent called for the OTP and filed the Form DRC-03. Annexure 1 is produced reflecting the conversation of the respondent and son of the partner. 13. Rejoinder affidavit and sur-rejoinder affidavit have been filed today by emphasizing that there is no threat or coercion made by the visiting officer to the petitioner for making payment of GST or fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;ble High Courts in this regard. 2. The matter has been examined. Board has felt the necessity to clarify the legal position of voluntary payment of taxes for ensuring correct application of law and to protect the interest of the taxpayers. It is observed that under CGST Act, 2017 a taxpayer has an option to deposit the tax voluntarily by way of submitting DRC-03 on GST portal. Such voluntary payments are initiated only by the taxpayer by logging into the GST portal using its login id and password. Voluntary payment of tax before issuance of show cause notice is permissible in terms of provisions of Section 73(5) and Section 74 (5) of the CGST Act, 2017. This helps the taxpayers in discharging their admitted liability, self-ascertained or as ascertained by the tax officer, without having to bear the burden of interest under Section 50 of CGST Act, 2017 for delayed payment of tax and may also save him from higher penalty imposable on him subsequent to issuance of show cause notice under Section 73 or Section 74, as the case may be. 3. It is further observed that recovery of taxes not paid or short paid, can be made under the provisions of Section 79 of CGST Act, 2017 on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tructions: (1) No recovery in any mode by cheque, cash, e-payment or adjustment of input tax credit should be made at the time of search/inspection proceedings under Section 67 of the Central/Gujarat Goods and Services Tax Act, 2017 under any circumstances. (2) Even if the assessee comes forward to make voluntary payment by filing Form DRC-03, the assessee should be asked/ advised to file such Form DRC-03 on the next day after the end of search proceedings and after the officers of the visiting team have left the premises of the assessee. (3) Facility of filing [a] complaint/ grievance after the end of search proceedings should be made available to the assessee if the assessee was forced to make payment in any mode during the pendency of the search proceedings. (4) If complaint/ grievance is filed by assessee and officer is found to have acted in defiance of the afore-stated directions, then strict disciplinary action should be initiated against the concerned officer. 38.1 It is important to note, that while in line with the directions contained in Bhumi Associate, the aforementioned Instruction i.e., Instruction No. 01/2022-2023 dated 25.05.2022 inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been asked, perhaps, to have the amounts deposited the day after the search is concluded, is, to also give space to the concerned person to seek legal advice, and only thereafter deposit tax, interest and penalty, wherever applicable, upon a proper self-ascertainment. 41.1 Undoubtedly, in this case, no such elbowroom was made available. Conclusion : 42. Therefore, as alluded to hereinabove, we are persuaded to hold, that the aforementioned amounts which were deposited on behalf of the petitioner-concern, lacked an element of voluntariness. 17. Learned Senior Standing Counsel Mr. Utkarsh Sharma has strongly resisted this on the ground that there had been no threat or coercion on the part of the respondent. He however, on instructions has urged that there is technical glitch in reversing the input tax of Rs.37,68,000/-. The said proposal was not acceptable to the petitioner. 18. On 31st January, 2023 after both the sides had concluded the hearing, the department has shown the willingness to reverse this. The difficulties faced by the portal since was the reason he made a request not to pass an order. Today, the request is being made by learned Sr.St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) contained in Bhumi Associates. as the instructions had permitted making of voluntarily payments of filing DRC 03 on the basis of ascertainment of their liability on non payment/short payment of taxes before or at any stage of proceedings. The only safeguard is of the tax officers to inform the tax payers regarding the provisions of voluntary tax payments through DRC-03. These instructions surely are not keeping in pace with the directions issued in toto. They being binding in nature even though issued at an interim stage everywhere in sur-rejoinder, the officer concerned has referred to them as the observations. It is to be noted that the decision of the Delhi High Court is subsequent on 20.12.2022 which was also forming the part of the record and yet he has an odacity to refer this to as the observations and not the directions. This in our opinion is an apparent case where scant regard is shown to the interim directions of this Court which have so far not been challenged. Having issued the instructions with regard to the same by No.01/2022-23 on 25th May, 2022, this disregard on the part of the officer concerned is required to be viewed with little seriousness, what has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Yes Sir. Harindra Kumar Yadav : It is done. 7C87C. Hold on for one minute. Axay Thakkar : Yes Sir. Harindra Kumar Yadav : It is done. Now I should hang up the call. Just do it. Only one minute Axayji. Please hold on. Axay Thakkar : Yes Sir. A message is received Intimation of voluntary payment is successful filed........ Harindra Kumar Yadav : Yes. Let's see. The system portal is still buffering. Axay Thakkar : Yes..... Yes. Something track of ARN..... A A......something like track status has been received Sir. Harindra Kumar Yadav : Yes. It is done..... It is done. Ok. Thank you. Axay Thakkar : Thank you Sir. Harindra Kumar Yadav : Thank you..... Thank you Akhay....... Thank you somuch. Axay Thakkar : Thank you Sir. 21. Assuming that the directions contained in the Bhumi Associates at the interim stage, no authority should forget that its own Board had followed it subsequently by issuing the instructions on the basis thereof and same had also received the scrutiny at the end of Delhi High Court. 22. Resultantly, this Court requires to hold that the respondent-revenue is required to reverse the ITC to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
