Taxpublishers.in - Latest/02_GST_01 - Tax Publishers Your Tax Solution Hub

Share via Whatsapp 115 Views


www.taxpublishers.in Central Goods and Services Tax Act, 2017, Section 73 Determination of tax--*No reply to show cause notice due to serious illness of assessee's husband--Validity of* Conclusion: Where assessee could not file response to the show cause notice within the stipulated time period due to serious illness of her husband, the impugned assessment order was liable to be set aside. Department passed ex parte order under section 73 of the Act on the ground that the assessee neither filed reply/explanation to the show cause notice within the stipulated period nor appeared for personal hearing before the Proper Officer on the given date and time. The assessee submitted that she could not respond to the show cause notice, as her husband was admitted in the hospital on the date fixed for hearing and thereafter expired after a prolonged illness. *Held:* Assessee was prevented from filing response to the show cause notice on account of serious illness of her husband. Accordingly, she was liable to be granted an opportunity to respond to the show cause notice. In this view, the impugned order was set aside and the matter was remitted to the Proper Officer to re-adjudicate the same in accordance with law. *Decision:* In favour of assessee by way of remand IN THE DELHI HIGH COURT SANJEEV SACHDEVA & RAVINDER DUDEJA JJ. Anita Bansal v. UOI & Anr. W.P. (C) No. 4520/2024 & CM Appl. No. 18438-39/2024 8 April, 2024 Petitioner by: Rajesh Jain, Viraj Tiwari, Rishabh Jain, Ramashish and Tanya Saraswat, Advocates Respondents by: Shoumendu Mukherji, Senior Panel Counsel with Megha Sharma and Akanksha Gupta, Advocates JUDGMENT *Sanjeev Sachdeva, J.* Petitioner impugns order dated 30-12-2023, whereby the impugned Show Cause Notice dated 23-9-2023, proposing a demand of Rs. 21,11,088.00 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 appearing for respondent. 3. With the consent of the parties, petition is taken up for final disposal today. 4. Perusal of the Show Cause Notice dated 23-9-2023 shows that the Department has given the heading of excess claim of Input Tax Credit [ ITC ]. 5. Thereafter, the impugned order passed on the said show cause notice records that a demand as ex-parte is created. It 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 for the sake of natural justice opportunity for Personal Hearing, as per provision of section 75(4) DGST Act, was also accorded to the taxpayer by issuing REMINDER through the GST portal. *** Now, since no reply/explanation has been received from the taxpayer despite sufficient and repeated opportunities, which indicates that the taxpayer has nothing to submit in the matter. * In view of aforesaid circumstances, the undersigned is left with no other option but to decide the matter exparte, in accordance with the provisions of CGST/DGST Act & Rules, 2017 6. Learned counsel for petitioner submits that the petitioner could not respond to the Show Cause Notice as on the date fixed for hearing i.e. 20-12-2023, the husband of the proprietor expired and thereafter the default assessment order has been issued. 7. Perusal of the order shows that the order has been passed disposing of the Show Cause Notice solely on the ground that no reply/explanation has been received from the tax payer. Petitioner has also annexed the medical record of the husband of the petitioner which shows that he was admitted in the hospital on 04-11-2023 and thereafter expired on 20-12-2023 after a prolonged illness. 8. We are of the view that the petitioner was prevented from filing a response to the Show Cause Notice on account of serious illness of her husband. Accordingly, petitioner is liable to be granted an opportunity to respond to the Show Cause Notice. 9. In view of the above, the impugned order dated 30-12-2023 which had been passed solely on account that petitioner had not filed a reply is set aside and the matter is remitted to the Proper Officer to re- adjudicate the same in accordance with law. 10. Petitioner shall file a reply to the Show Cause Notice within a period of 30 days from today. Thereafter, the Proper Officer shall re-adjudicate the Show Cause Notice after giving an opportunity of personal hearing and pass a fresh speaking order in accordance with law within the period prescribed under section 75 (3) of the Act. 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, Section 73

Determination of tax--No reply to show cause notice due to serious illness of assessee's husband--Validity of

Conclusion: Where assessee could not file response to the show cause notice within the stipulated time period due to serious illness of her husband, the impugned assessment order was liable to be set aside.

Department passed ex parte order under section 73 of the Act on the ground that the assessee neither filed reply/explanation to the show cause notice within the stipulated period nor appeared for personal hearing before the Proper Officer on the given date and time. The assessee submitted that she could not respond to the show cause notice, as her husband was admitted in the hospital on the date fixed for hearing and thereafter expired after a prolonged illness. Held: Assessee was prevented from filing response to the show cause notice on account of serious illness of her husband. Accordingly, she was liable to be granted an opportunity to respond to the show cause notice. In this view, the impugned order was set aside and the matter was remitted to the Proper Officer to re-adjudicate the same in accordance with law.

Decision: In favour of assessee by way of remand

IN THE DELHI HIGH COURT

SANJEEV SACHDEVA & RAVINDER DUDEJA JJ.

Anita Bansal v. UOI & Anr.

W.P. (C) No. 4520/2024 & CM Appl. No. 18438-39/2024

8 April, 2024

Petitioner by: Rajesh Jain, Viraj Tiwari, Rishabh Jain, Ramashish and Tanya Saraswat, Advocates

Respondents by: Shoumendu Mukherji, Senior Panel Counsel with Megha Sharma and Akanksha Gupta, Advocates

JUDGMENT

Sanjeev Sachdeva, J.

Petitioner impugns order dated 30-12-2023, whereby the impugned Show Cause Notice dated 23-9-2023, proposing a demand of Rs. 21,11,088.00 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 appearing for respondent.

3. With the consent of the parties, petition is taken up for final disposal today.

4. Perusal of the Show Cause Notice dated 23-9-2023 shows that the Department has given the heading of excess claim of Input Tax Credit [ ITC ].

5. Thereafter, the impugned order passed on the said show cause notice records that a demand as ex-parte is created. It 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 for the sake of natural justice opportunity for Personal Hearing, as per provision of section 75(4) DGST Act, was also accorded to the taxpayer by issuing REMINDER through the GST portal. ***** Now, since no reply/explanation has been received from the taxpayer despite sufficient and repeated opportunities, which indicates that the taxpayer has nothing to submit in the matter. ***** In view of aforesaid circumstances, the undersigned is left with no other option but to decide the matter exparte, in accordance with the provisions of CGST/DGST Act & Rules, 2017

6. Learned counsel for petitioner submits that the petitioner could not respond to the Show Cause Notice as on the date fixed for hearing i.e. 20-12-2023, the husband of the proprietor expired and thereafter the default assessment order has been issued.

7. Perusal of the order shows that the order has been passed disposing of the Show Cause Notice solely on the ground that no reply/explanation has been received from the tax payer. Petitioner has also annexed the medical record of the husband of the petitioner which shows that he was admitted in the hospital on 04-11-2023 and thereafter expired on 20-12-2023 after a prolonged illness.

8. We are of the view that the petitioner was prevented from filing a response to the Show Cause Notice on account of serious illness of her husband. Accordingly, petitioner is liable to be granted an opportunity to respond to the Show Cause Notice.

9. In view of the above, the impugned order dated 30-12-2023 which had been passed solely on account that petitioner had not filed a reply is set aside and the matter is remitted to the Proper Officer to re- adjudicate the same in accordance with law.

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

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.