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TMI Blog2024 (12) TMI 436X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;the Act') was issued for scrutiny of the return by the Proper Officer to explain about the ITC claimed on the purchases, alleging that during the period 2017-18, the firm had claimed ITC from four different firms, whose registration had already been cancelled, and therefore, the petitioner was directed to prove the genuineness of the claim regarding ITCs. 3. The petitioner submitted its reply to the notice and was intimated, vide GST ASMT-12 on 28.02.2023 that their reply had been found to be satisfactory, and no further action is required to be taken in the matter for the financial year 2017-18. 4. At the same time, on 23.02.2023, an intimation under Rule 142 (1) (A) in Form GST DRC 01A was issued for FY 2017-18, wherein it was me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 61 stood dropped, the Proper Officer could not have proceeded further under Section 74 (1) of the Act, and further the order was also vitiated on the ground of violation of principles of natural justice, as the petitioner had demanded in terms of Section 75(4) of the Act an opportunity of personal hearing, which was admittedly not provided to him. 6. Per contra, learned counsel appearing for the State has supported the order and submitted that as the proceedings under Section 74 (5) of the Act stood initiated on 23.02.2023, the order of dropping the proceedings under Section 61 on 28.02.2023 i.e. later on, was obviously erroneous and treating the same so, the Authority has proceeded. Therefore, there is no need of intereference. Learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d other dues under section 73 or section 74." 9. Section 74 of the CGST Act, 2017 has two parts, one is Section 74 (1) which reads as under:- "74. Determination of tax not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilised by reason of fraud or any willful misstatement or suppression of facts.- (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 by 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 erroneou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act, 2017. However, if we read Section 61(3) of the Act, 2017, we find that the said proceedings are only consequential i.e. when the Proper Officer reaches to a conclusion that the reply is not satisfactory. In the letter issued on 23.02.2023, while ascertaining the liability of the petitioner under Section 74 (5) of the Act, the concerned Proper Officer also mentions that reply to notice under Section 61 is not found satisfactory. 12. Thus, there are two different views expressed by the same Proper Officer, one while intimating the liability under Section 74 (5) of the Act and the other by subsequently dropping the proceedings under Section 61 (2) on 28.02.2023. 13. Therefore, it can be presumed that after the notice was given under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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