TMI Blog2024 (3) TMI 269X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. Petition disposed off. - HON BLE MR. JUSTICE SANJEEV SACHDEVA AND HON'BLE MR. JUSTICE RAVINDER DUDEJA Advocates who appeared in this case: For the Petitioner Mr. Preetam Singh, Advocate. For the Respondents: Mr. Rajeev Aggarwal, ASC. JUDGMENT SANJEEV SACHDEVA, J. (ORAL) 1. Petitioner seeks refund of an amount of Rs. 35,00,000/- (Rupees Thirty Five Lakhs only) which was recovered from the Petitioner sans authority of law during the search proceedings carried out on 07.01.2023, by coercing him to reverse the Input Tax Credit done on 07.01.2023 through FORM GST DRC-03. 2. Petitioner was engaged in business of trading of health supplements. 3. On 06.01.2023, Petitioner was subjected to search based on GST INS-01 issued by the Respondents. The reasons mentioned in the form INS-01 are as under: i has suppressed transaction relating to supply of goods and/or services ii has suppressed transaction relating to stock of goods in hand iii has claimed input tax credit in excess of his entitlement under the Act iv has indulged in contravention of the provisions of this act or rules made thereunder to evade tax under this Act 4. The search operation commenced on dated 07.01.2023 at 03: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , unless the amount which is self-ascertained by the person chargeable with tax falls short of the amount payable as per law. 53. This leeway is also available, where the person chargeable with tax is served with a show cause notice and pays the tax, along with interest, under Section 50 of the 2017 Act within thirty [30] days of the issue of the show-cause notice. In such eventuality, a penalty is not leviable, and all proceedings in respect of such notice are deemed to be concluded. 54. This regime is set out in Section 73 of the 2017 Act. 55. Broadly, this regime also applies, where a notice has been issued under sub-section (1) of Section 73, and the proper officer serves a statement containing details of tax not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilized for such periods other than those covered under subsection (1) of Section 73. 56. The important aspect to be kept in mind, is that the regime given in Section 73 of the Act operates in cases which do not involve fraud or wilful misstatement or suppression of facts to evade tax. 57. In cases which involve one or more of the aforementioned ingredients i.e., fraud, wilful misstateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y under sub-section (5) of Section 74 [which relates to cases involving fraud, wilful misstatement or suppression of facts to evade tax], he is required to inform the proper officer of such payment made in the prescribed form i.e., GST DRC-03. 66. The proper officer thereafter, is required to issue an acknowledgement, accepting the payment made by the person, also in the prescribed form i.e., GST DRC-04. 67. This is also required to be done [i.e., the acknowledgement of acceptance of payment] where tax, interest and penalty are ascertained by the proper officer, under Rule 142(1A). ***** ***** ***** 76. The malaise of officials seeking to recover tax dues (in contrast to voluntary payments being made by assesses towards tax dues) during search, inspection or investigation was sought to be addressed by the GST-Investigation, CBIC via Instruction No. 01/2022-2023 dated 25.05.2022. For the sake of convenience, the said instruction is extracted hereafter: Date : 25 May, 2022 Instruction No. 01/2022-2023 [GST - Investigation] Subject : Deposit of tax during the course of search, inspection or investigation-reg. 1. During the course of search, inspection or investigation, sometimes the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer in respect of such issues, either during the course of such proceedings or subsequently. 4. Therefore, it is clarified that there may not be any circumstance necessitating recovery of tax dues during the course of search or inspection or investigation proceedings. However, there is also no bar on the taxpayers for voluntarily making the payments on the basis of ascertainment of their liability on nonpayment/ short payment of taxes before or at any stage of such proceedings. The tax officer should however, inform the taxpayers regarding the provisions of voluntary tax payments through DRC-03. 5. Pr. Chief Commissioners/Chief Commissioners, CGST Zones and Pr. Director General, DGGI are advised that in case, any complaint is received from a taxpayer regarding use of force or coercion by any of their officers for getting the amount deposited during search or inspection or investigation, the same may be enquired at the earliest and in case of any wrongdoing on the part of any tax officer, strict disciplinary action as per law may be taken against the defaulting officers. (Vijay Mohan Jain) Commissioner (GST-Inv.), CBIC 77. It appears that this Instruction was issued by the GST Inves ..... X X X X Extracts X X X X X X X X Extracts X X X X
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