Constitution of India, 1950, Article 226
Central Goods and Services Tax Act, 2017, Sections 168A & 73(10)
Writ petition--Maintainability--Challenge
to Notification extending time limit for issuance of show cause notices
Conclusion: Where
demand-cum-show cause notice was issued to the assessee on the strength of Notification
No. 9/2023-CT, dt. 31-03-2023, by which, the time limit provided under
section 73(10) of the CGST Act for issuance of show cause notices was extended,
in view of fact that the final order was already passed and similar issues are
being examined by various Courts of the Country, the order of recovery of
amount assessed against the assessee would not be enforced till further orders
of the Court.
Revenue issued demand-cum-show cause notice to the assessee
on the strength of Notification No. 9/2023-CT, dt. 31-03-2023, by which,
the time limit provided under section 73(10) of the CGST Act for issuance of
show cause notices was extended for the relevant years. The assessee challenged
the said Notification by filing writ petition before the High Court on the
ground that the conditions precedent provided in explanation to section 168A of
the CGST Act was not present on the date when the notification was issued. Held:
Pursuant to the show cause notice, the assessee participated in the proceedings
and the final order was passed on 9-2-2024. As the final order was already
passed and similar issues are being examined by various Courts of the Country,
the order of recovery of amount assessed against the assessee would not be
enforced till further orders of the Court.
Decision: Directions
issued
IN THE GAUHATI HIGH COURT
KALYAN RAI SURANA
Maina Devi Choraria v. UOI & Ors.
WP (C)/1764/2024
2 April, 2024
Petitioner by: MR. D SARAF
Respondent by: DY. S. G.
I.
Heard Mr. D. Saraf, learned counsel for the petitioner.
Also heard Mr. K. K. Medhi, learned counsel appearing on behalf of Mr. S.K.
Medhi, learned CGC for respondent no.1; Mr. V. Choudhury, learned standing
counsel for the Finance Department, respondent nos.2, 4 and 5; and Mr. S.C.
Keyal, learned standing counsel for the CGST, respondent nos.3, 6 and 7.
2. By filing this writ
petition under article 226 of the Constitution of India, the petitioner has
assailed the Notification No. 09/2023-CT dated 31-3-2023, by virtue of
which the time limit provided under section 73(10) of the CGST Act for the
financial years 2017-18, 2018-19 and 2019-20 was respectively extended to
31-12-2023, 31-3-2024 and 30-6-2024. It is projected that the time limit in
respect of the petitioner for examining the annual return for the financial
year 2018-19 had expired on 31-12-2023. However, on the strength of the
impugned notification dated 31-3-2023, show-cause notice was issued to the
petitioner for the financial year 2018-19 and accordingly, the said
notification has been challenged, inter alia on the ground that the
conditions precedent provided in explanation to section 168(A) was not present
on the date when the notification was issued. It is submitted that various
Courts of the Country are also in seisin with the challenge similar to one made
by the petitioner.
3. The learned standing
counsel for the CGST has produced a copy of the relevant extraction of the
agenda of 49th CGST council meeting held on 18-2-2023 to project that the issue
regarding extension of timelines under section 73(10) was discussed and recommendation
was made for extension of time in view of the situation that prevailed during
the Covid-19 period, where employees of the office either could not attend
office or they were attending duty on staggered timing. It is submitted that
consequently there was a huge pile-up of the files for examination and issuance
of process for recovery of tax not paid or short paid or input tax credit
wrongly availed or utilized during said period. Accordingly, it is submitted
that issuance of show-cause notice was fully justified and therefore he opposes
the admission of this writ petition.
4. The learned standing
counsel for the State GST and Finance Department have submitted that the State
GST had adopted the notification issued by the Central Govt. and therefore, the
said notification for extension of time applied on the State proprio vigore.
5. In view of the issue
raised, let a notice returnable on 10-5-2024 be issued.
6. Requisite extra copies of
the writ petition be furnished to the learned CGC and departmental counsel in
course of the day.
7. The learned counsel for
the petitioner, at this stage, has submitted that pursuant to the show-cause
notice, the petitioner has participated in the proceedings and final order has
been passed on 9-2-2024.
8. As final order has
already been passed and taking note of the fact that similar issues are being
examined by various Courts of the Country, the Court is inclined to provide
that till further orders of the Court, the recovery of the amount assessed
against the petitioner shall not be enforced.
9. List on 10-5-2024.