Taxpublishers.in - Latest/12_GST_01 - Tax Publishers Your Tax Solution Hub

Share via Whatsapp 103 Views


www.taxpublishers.in Central Goods and Services Tax Act, 2017, Sections 29 & 73 Cancellation of registration--Neither show cause notice was issued nor opportunity of personal hearing was given--Validity of *Conclusion:* Where the assessee was neither provided show cause notice nor opportunity of personal hearing was given to it before cancellation of its GST registration with retrospective effect, the matter was liable to be remitted to the Proper Officer for re-adjudication. GST registration of the assessee was cancelled with retrospective effect. The assessee submitted that he was not served with the show cause notice and the assessment order under section 73 of the Act was passed ex parte after cancellation of its registration. *Held:* Department cancelled the registration of assessee retrospectively due to which, it could not access the GST portal. Consequently, it was unable to file reply/explanation to the show cause notice within the stipulated period and could not appear for personal hearing before the Proper Officer on the given date and time. Accordingly, the matter was remitted to the Proper Officer for re-adjudication. Decision: In favour of assessee by way of remand IN THE DELHI HIGH COURT SANJEEV SACHDEVA AND HON'BLE MR. JUSTICE RAVINDER DUDEJA Jain Cement Udyog v. Central Board of Indirect Taxes, Cus. & Anr. W.P. (C) No. 3373/2024 & CM. Appls. 13870/2024 4 April, 2024 Petitioner by: R.P. Singh, Advocate. Respondents by: Anurag Ojha, Senior Standing Counsel with Subham Kumar, Advocate for R-1. Rajeev Aggarwal, Additional Standing Counsel with Prateek Badhwar, Shaguftha H. Badhwar and Samridh Vats, Advocates. JUDGMENT *Sanjeev Sachdeva, J.* Petitioner impugns order dated 4-12-2023, whereby the impugned Show Cause Notice dated 25-9-2023, proposing a demand of Rs. 7,56,66,476.00 against the Petitioner has been disposed of and a demand including penalty has been raised against the Petitioner. The order has been passed under section 73 of the Central Goods and Services Tax Act, 2017 (hereinafter referred to as the Act). 2. Issue notice. Notice is accepted by learned counsel for the respondents. With the consent of parties, petition is taken up for final disposal. 3. Perusal of the Show Cause Notice shows that the Department has given separate headings i.e., under declaration of output tax; excess claim of Input Tax Credit [ ITC ]; and ITC claimed from cancelled dealers, return defaulters and tax non payers. 4. The impugned order, however, after recording the narration, records that a demand as ex-parte is created. It merely states that And whereas, it is noticed that the Taxpayer neither filed reply/explanation within stipulated period nor appeared for Personal Hearing before Proper Officer on the given date and time, Further, another opportunity to submit reply and observing principles of natural justice, opportunity for Personal Hearing, as per provision of section 75(4) DGST Act, was also provided to the taxpayer by issuing "REMINDER" through the GST portal. Now, since no reply I explanation has been received from the taxpayer despite sufficient and repeated opportunities, which indicate that the taxpayer has nothing to say in the matter. *** In view of the aforesaid circumstances, the undersigned is left with no other option left but to create demand as ex-parte, in accordance with the provisions of CGST/DGST Act & Rules, 2017. The Proper Officer has opined that despite providing another opportunity, neither an online reply has been filed nor has the petitioner appeared in person or through an authorized representative. 5. Learned counsel for petitioner submits that the GST registration of the petitioner had been cancelled retrospectively with effect from 26-7-2017. 6. It is an admitted case of the Department that in case registration is cancelled retrospectively, the taxpayer cannot access the portal. Accordingly, there is merit in the contention of the petitioner that he was not served with the impugned Show Cause Notice and the impugned order which was issued after the registration was cancelled. 7. In view of the above, we are of the view that the impugned order which had been passed solely on account that petitioner had not filed a reply cannot be sustained. The matter is liable to be remitted to the Proper Officer for re-adjudication. Accordingly, the impugned order dated 4-12-2023 is set aside. The matter is remitted to the Proper Officer for re-adjudication. 8. Petitioner shall file reply to the Show Cause Notice within 30 days. Thereafter, the Proper Officer shall re-adjudicate the show cause notice after giving an opportunity of personal hearing and shall pass a fresh speaking order in accordance with law within the period prescribed under section 75 (3) of the Act. 9. Learned counsel further submits that another Show Cause Notice for the same tax period dated 05-4-2023 has been issued by the Directorate General of Goods and Services Intelligence, Ghaziabad Regional Unit. This order would be without prejudice to the proceedings already initiated by the Directorate General of Goods and Services Intelligence, Ghaziabad, Regional Unit and defence of the petitioner thereto. 10. It is clarified that this Court has neither considered nor commented upon the merits of the contentions of either party. All rights and contentions of parties are reserved. 11.** The challenge to Notification No. 9 of 2023 with regard to the initial extension of time is left open. 12. Petition is disposed of in the above terms.

www.taxpublishers.in

Central Goods and Services Tax Act, 2017, Sections 29 & 73

Cancellation of registration--Neither show cause notice was issued nor opportunity of personal hearing was given--Validity of

Conclusion: Where the assessee was neither provided show cause notice nor opportunity of personal hearing was given to it before cancellation of its GST registration with retrospective effect, the matter was liable to be remitted to the Proper Officer for re-adjudication.

GST registration of the assessee was cancelled with retrospective effect. The assessee submitted that he was not served with the show cause notice and the assessment order under section 73 of the Act was passed ex parte after cancellation of its registration. Held: Department cancelled the registration of assessee retrospectively due to which, it could not access the GST portal. Consequently, it was unable to file reply/explanation to the show cause notice within the stipulated period and could not appear for personal hearing before the Proper Officer on the given date and time. Accordingly, the matter was remitted to the Proper Officer for re-adjudication.

Decision: In favour of assessee by way of remand

IN THE DELHI HIGH COURT

SANJEEV SACHDEVA AND HON'BLE MR. JUSTICE RAVINDER DUDEJA

Jain Cement Udyog v. Central Board of Indirect Taxes, Cus. & Anr.

W.P. (C) No. 3373/2024 & CM. Appls. 13870/2024

4 April, 2024

Petitioner by: R.P. Singh, Advocate.

Respondents by: Anurag Ojha, Senior Standing Counsel with Subham Kumar, Advocate for R-1. Rajeev Aggarwal, Additional Standing Counsel with Prateek Badhwar, Shaguftha H. Badhwar and Samridh Vats, Advocates.

JUDGMENT

Sanjeev Sachdeva, J.

Petitioner impugns order dated 4-12-2023, whereby the impugned Show Cause Notice dated 25-9-2023, proposing a demand of Rs. 7,56,66,476.00 against the Petitioner has been disposed of and a demand including penalty has been raised against the Petitioner. The order has been passed under section 73 of the Central Goods and Services Tax Act, 2017 (hereinafter referred to as the Act).

2. Issue notice. Notice is accepted by learned counsel for the respondents. With the consent of parties, petition is taken up for final disposal.

3. Perusal of the Show Cause Notice shows that the Department has given separate headings i.e., under declaration of output tax; excess claim of Input Tax Credit [ ITC ]; and ITC claimed from cancelled dealers, return defaulters and tax non payers.

4. The impugned order, however, after recording the narration, records that a demand as ex-parte is created. It merely states that And whereas, it is noticed that the Taxpayer neither filed reply/explanation within stipulated period nor appeared for Personal Hearing before Proper Officer on the given date and time, Further, another opportunity to submit reply and observing principles of natural justice, opportunity for Personal Hearing, as per provision of section 75(4) DGST Act, was also provided to the taxpayer by issuing "REMINDER" through the GST portal. Now, since no reply I explanation has been received from the taxpayer despite sufficient and repeated opportunities, which indicate that the taxpayer has nothing to say in the matter. ***** In view of the aforesaid circumstances, the undersigned is left with no other option left but to create demand as ex-parte, in accordance with the provisions of CGST/DGST Act & Rules, 2017. The Proper Officer has opined that despite providing another opportunity, neither an online reply has been filed nor has the petitioner appeared in person or through an authorized representative.

5. Learned counsel for petitioner submits that the GST registration of the petitioner had been cancelled retrospectively with effect from 26-7-2017.

6. It is an admitted case of the Department that in case registration is cancelled retrospectively, the taxpayer cannot access the portal. Accordingly, there is merit in the contention of the petitioner that he was not served with the impugned Show Cause Notice and the impugned order which was issued after the registration was cancelled.

7. In view of the above, we are of the view that the impugned order which had been passed solely on account that petitioner had not filed a reply cannot be sustained. The matter is liable to be remitted to the Proper Officer for re-adjudication. Accordingly, the impugned order dated 4-12-2023 is set aside. The matter is remitted to the Proper Officer for re-adjudication.

8. Petitioner shall file reply to the Show Cause Notice within 30 days. Thereafter, the Proper Officer shall re-adjudicate the show cause notice after giving an opportunity of personal hearing and shall pass a fresh speaking order in accordance with law within the period prescribed under section 75 (3) of the Act.

9. Learned counsel further submits that another Show Cause Notice for the same tax period dated 05-4-2023 has been issued by the Directorate General of Goods and Services Intelligence, Ghaziabad Regional Unit. This order would be without prejudice to the proceedings already initiated by the Directorate General of Goods and Services Intelligence, Ghaziabad, Regional Unit and defence of the petitioner thereto.

10. It is clarified that this Court has neither considered nor commented upon the merits of the contentions of either party. All rights and contentions of parties are reserved.

11. The challenge to Notification No. 9 of 2023 with regard to the initial extension of time is left open.

12. Petition is disposed of in the above terms.