In the case of Pithamber Distributors Vs. Assistant Commissioner (ST) W.P. No. 11337 of 2024, [2024] 162 taxmann.com 630 (Madras), Impugned Order and the Show Cause Notice, both were issued on 31/12/2023.
Petitioner has submitted that:
The facts speak of themselves and the order and SCN are issued on the same date (Opportunity of being heard is not provided)
SCN was issued in breach of Section 73(2) of CGST Act, 2017 (SCN needs to be issued at least 3 months prior to the time-limit for issue of order u/s. 73(10), which is 3 years from the due date for furnishing Annual Return)
Hon’ble High Court of Madras has held that:
The contention of the petitioner that a reasonable opportunity was not provided is liable to be accepted. Since both the show cause notice and impugned order were issued on the same date, the impugned order is unsustainable.
Consequently, impugned order dated 31.12.2023 is set aside by leaving it open to the respondent to initiate proceedings in accordance with law.
In the case of Vishal Steel Supplier Vs. State of UP, Writ Tax No. 741 of 2020, [2024] 164 taxmann.com 609 (Allahabad), a vehicle carrying the goods and requisite documents was moving from Muzaffarnagar to Ghaziabad, which was intercepted at Hapur. No discrepancy with regard to quality, quantity, or description of goods was observed.
Goods were detained on the surmise that the same were not on its normal route and that the driver has the mobile number of one dealer in Hapur and that the driver may unload those goods at Hapur without proper documents.
The Petitioner has submitted that:
In GST Regime, there is no provision for disclosure of route prior to the movement of the goods, as was the case during VAT regime.
Since it was crushing season, there was heavy traffic jam on the way to Moti Nagar, where many sugar mills are situated. Hence, the driver has taken another route via Hapur.
There was no finding recorded by the department that there was any intention to evade payment of tax.
Decision in the case of M/s Om Prakash Kuldeep Kumar v. Additional Commissioner Grade – 2 and another (2024 UPTC Vol. 116 -19), wherein it was held at Para 10 and 11 that:
Under the GST Act, there is no specific provision which bounds the selling dealer to disclose the route to be taken during transportation of goods or while goods are in transit however there was a provision under VAT Act to disclose the rout during transportation of goods to reach its final destination. Once the legislature itself in its wisdom has chosen to delete the said provision, this Court opined that the authorities were not correct in passing the seizure order even if the vehicle was not on regular route or on different route.
The power of detention as well as seizure can be exercised only when the goods were not accompanying with the genuine documents provided under the Act. The genuineness of the documents has not been disputed at any stage.
It was held by Hon’ble High Court of Allahabad that:
The respondent authorities have not recorded any finding with regard to intention to avoid the payment of tax, in other words the mens rea is absent. Once there is no finding with regard to mens rea to avoid the payment of tax, the impugned order cannot be sustained in the eyes of law on this ground also. The impugned orders dated 30.7.2020 and 10/11.12.2019 are hereby quashed.
Neeraj Kumar Vs. Proper Officer SGST Ward-19 Zone-2
W.P. (C) No. 9425 of 2024 – High Court of Delhi
[2024] 164taxmann.com685 (Delhi)
Facts of the case:
Order issued u/s. 73 was dated 30th December 2023 and SCN was dated 28th September 2023.
Arguments of Petitioner:
Notification No. 9/2023 – CT dated 31st March 2023 whereby Time limit to issue specified u/s. 73(10) to issue order u/s. 73(9) for FY 2017-18 has been extended up to 31st December 2023 (in exercise of powers conferred under Section 168A) , was challenged and it was submitted that SCN was barred by Limitation.
Show Cause Notice was uploaded on the GST portal under the head ‘Additional Notices and Orders’ which was not easily accessible and that it need to be placed under ‘Notices and Orders’, but the same was not done.
Decisions Quoted:
ACE Cardiopathy Solutions (P.) Ltd. v. Union of India[Neutral Citation No.2024: DHC:4108-DB] – In this decision, Hon’ble Delhi High Court had rejected the contention that uploading of a notice under the heading ‘Additional Notices’ would be sufficient service in terms of Section 169 of the CGST Act.
Held that:
The GST Authorities have since addressed the issue and have redesigned the portal to ensure that ‘View Notices’ tab and ‘View Additional Notices’ tab was placed under one heading. However, it is not disputed that the impugned SCN was issued before the GST portal was re-designed.
In view of the above, the present petition is allowed and the impugned order is set aside. The matter is remanded to the adjudicating authority for consideration afresh.
(1) Any decision, order, summons, notice or other communication under this Act or the rules made thereunder shall be served by any one of the following methods, namely:
by giving or tendering it directly or by a messenger including a courier to the addressee or the taxable person or to his manager or authorised representative or an advocate or a tax practitioner holding authority to appear in the proceedings on behalf of the taxable person or to a person regularly employed by him in connection with the business, or to any adult member of family residing with the taxable person; or
by registered post or speed post or courier with acknowledgement due, to the person for whom it is intended or his authorised representative, if any, at his last known place of business or residence; or
by sending a communication to his e-mail address provided at the time of registration or as amended from time to time; or
by making it available on the common portal; or
by publication in a newspaper circulating in the locality in which the taxable person or the person to whom it is issued is last known to have resided, carried on business or personally worked for gain; or
if none of the modes aforesaid is practicable, by affixing it in some conspicuous place at his last known place of business or residence and if such mode is not practicable for any reason, then by affixing a copy thereof on the notice board of the office of the concerned officer or authority who or which passed such decision or order or issued such summons or notice.
Section 168A of the CGST Act states that (w.e.f. 31st March 2020):
(1) Notwithstanding anything contained in this Act, the Government may, on the recommendations of the Council, by notification, extend the time limit specified in, or prescribed or notified under, this Act in respect of actions which cannot be completed or complied with due to force majeure.
(2) The power to issue notification under sub-section (1) shall include the power to give retrospective effect to such notification from a date not earlier than the date of commencement of this Act.
Explanation: For the purposes of this section, the expression “force majeure” means a case of war, epidemic, flood, drought, fire, cyclone, earthquake or any other calamity caused by nature or otherwise affecting the implementation of any of the provisions of this Act.
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