2023-TIOL-1268-HC-KOL-GST
Makhan Lal Sarkar Vs Assistant Commissioner of Revenue State Tax
GST - By an order dated 28 June, 2023 the respondent no.2 dismissed the appeal and upheld the order passed by the adjudicating authority under section 73 of the Act on the ground that there was a mismatch of the ITC claimed in Form GSTR-3B and the same was not reflected in FORM GSTR-2A - Petitioner assails the impugned order primarily on the ground that the same has been passed in violation of the principles of natural justice.
Held: The petitioner had been given notice of personal hearing and repeated opportunities i.e. on 11 August, 2022, 1 September, 2022, 19 October, 2022 and 9 November, 2022 respectively - However, the petitioner chose not to appear leaving the respondent no.2 with no other option but to pass an ex parte order -cFairness is not a one way street - An assessee cannot have an implacable approach in refusing to appear before the respondent authorities and then complain of violation of the principles of natural justice - This would defeat the provisions of the Act and make the entire adjudicatory process before the Authority nugatory - In the circumstances, there is no merit in the contention raised on behalf of the petitioner that the impugned order has been passed in violation of the principles of natural justice - Nevertheless, the respondent no. 2 even though disposing of the appeal ex-parte was obliged to take into consideration and proceed on the basis of records and deal with the appeal on merits in accordance with law - There is also absence of reasons in the impugned order in rejecting the contentions raised by the appellant - In such circumstances, the impugned order is unsustainable and set aside - The appellant is directed to deposit twenty per cent of the tax in dispute in addition to the amount paid under sub-section (6) of section 107 of the Act - Upon such payment being made within 7 days from the date of passing of this order, the respondent no. 2 shall afford an opportunity of hearing afresh to the petitioner and proceed to dispose of the appeal in accordance with law - The aforesaid exercise should be completed within eight weeks - With the aforesaid directions, WPA 2146 of 2023 stands allowed: High Court
- Petition disposed of: CALCUTTA HIGH COURT 2023-TIOL-1267-HC-MAD-GST
P Athimoolam Contractor Vs Appellant Authority/DCCT
GST - Tax due for the month of September 2019 and October 2019 was belatedly paid by the petitioner along with the returns filed during the month of March on 11.11.2020 in Form GSTR -3B under Rule 61(5) of the GST Act - A further sum of Rs. 4,13,222/- has also been recovered for the same amount, pursuant to the impugned order dated 06.12.2022 - GST ASMT-10 dated 18.08.2020 and 26.12.2020 were issued and notice in DRC-01 was issued to the petitioner on 21.02.2022 - However, the petitioner failed to respond and thus the aforesaid order dated 06.12.2022 came to be passed and which is the subject matter of the petition.
Held: Prima facie, the petitioner has been subject to gross injustice - Considering overall facts and circumstances and considering the fact that the petitioner appears to have discharged the tax liability by paying the amount and filing the return in GSTR-3B for the period March 2020 on 11.11.2020, Court is inclined to set aside the impugned order and remit the case back to the respondents to pass a fresh order on merits - Amount recovered directly from the petitioner's bank account on 05.05.2023 shall be refunded to the petitioner or adjusted subject to the final outcome of the proceedings - Writ petition is disposed of: High Court [para 2, 3, 4]
- Petition disposed of: MADRAS HIGH COURT 2023-TIOL-1266-HC-PATNA-GST
Ram Krishna Mission Ashrama Vs State of Bihar
GST - Petitioner's contention is that both the assessment orders are ex parte and the orders themselves were brought to the notice of the petitioner only when notice of attachment was issued to the bank in which the petitioner maintains an account.
Held: The petitioner seeks to challenge the demand on the ground of no physical copy of the notice and orders having not been served; while it is admitted that the same was sent on e-mail and auto-populated - Having not availed the statutory remedies available, the petitioner cannot seek to approach this Court under Article 226 of the Constitution of India to challenge an assessment order especially with respect to the computation of the turnover and the determination of the taxable turnover and the tax payable, as arrived at by the Assessing Officer - In the BGST Act, an appellate remedy is provided under Section 107, which has to be availed within a period of three months or with a delay within a further period of one month - It is trite law that when there is a specific period for delay condonation provided, there cannot be any extension of the said period by the Appellate Authority or by this Court under Article 226 of the Constitution - The petitioner by his own failure has not availed the appellate remedy and in that circumstance, there can be no invocation of the extraordinary jurisdiction under Article 226 of the Constitution of India - Petition dismissed: High Court [para 6, 7, 8]
- Petition dismissed: PATNA HIGH COURT |
