Tamil Nadu Goods and Services Tax Act, 2017, Section 73
Constitution of India, 1950, Article 226
Determination of tax--Non-speaking
order--Validity of
Conclusion: Where
assessment order passed by the revenue authority was non-speaking order and did
not consider the reply filed by the assessee, the said order was liable to be
set aside.
Assessee challenged the order passed by the revenue
authority under section 73(1) of the TNGST/CGST Act, wherein, it was alleged
that the assessee had availed/claimed excess Input Tax Credit for the relevant
assessment year. Revenue argued that writ petition filed by the assessee was
without any merits and the same was beyond the period of limitation. Held:
The order passed by the revenue authority was non-speaking order. It did not
consider the reply filed by the assessee. Further, the impugned order was without
any proper reasoning, hence, the same was set aside and the matter was remitted
back to the authority concerned to pass a fresh order on merits and in
accordance with law.
Decision: In favour
of assessee by way of remand
IN THE MADRAS HIGH COURT
C. SARAVANAN
Sri Rahaventher Industries v. UOI
W.P. (MD) No. 8566 of 2024 and W.M.P. Nos. 7800
and 7804 of 2024
15 April, 2024
Petitioner by: A.
Chandrasekaran
Respondents by: M. Ashok
Kumar, Central Government Senior Standing Counsel for R1 and 2, R. Suresh
Kumar, AGP for R3 to 5
The petitioner has challenged the impugned order dated
30-12-2023 bearing Ref. No.ZD33122382708B passed for the assessment year for
the tax period between July 2017 to March 2018 being the first year after the
implementation of the demand.
2. It is the specific case
of the petitioner that petitioner had replied to the show cause notice dated
4-8-2023 and to notice in DRC-01 dated 16-9-2023 on 01-11-2023. However, the
respondents have proceeded to pass the impugned order The operative portion of
the impugned order reads as under:
Tax period (JULY 2017-MARCH
2018) Financial Year - 2017- 2018
Sir,
Tvl. SRI RAHAVENTHER INDUSTRIES,
doing business at 2/862, AR NAGAR EXTENTION, KADACHANENDAL, KADAKINARU,
Madurai, Tamil Nadu, 625107 is a registered person under TNGST Act, 2017, under
the Jurisdiction of this office. On scrutiny of the returns for the year
2017-2018 reveals that there was mismatch in GSTR3B vs GSTR2B/2A are noted
below:
Mismatch in availing of Input and
GSTR-3B return and GSTR-2B/2A:
On verification of Input Tax
Credit availed in Form GSTR-3B returns with Form GSTR-2B/2A for the assessment
year 2017-2018, it was noticed that you have availed/claimed excess Input Tax
Credit to an extent of Rs. 393611-(CGST),Rs.393611 (SGST) and Rs. 601204 (IGST)
thereby reduced the output tax payment as detailed below:
Tax
period
|
ITC
claimed in GSTR-3B during the month (as per table 4A(4)=4A(5)-4B(1)-4B(2))*
|
ITC
auto-drafter in GSTR-2A during the month (asper PART-A, PART-B) (Excluding RM
Supplies
|
|
IGST
|
CGST
|
SGST/UTGST
|
CESS
|
IGST
|
CGST
|
SGST/UTGST
|
CESS
|
1
|
2
|
3
|
4
|
5
|
6
|
7
|
8
|
9
|
|
|
Deliberately left blank
|
|
|
|
|
|
|
Details
|
CGST
ITC (Rs.)
|
SGST
ITC (Rs.)
|
IGST
ITC (Rs.)
|
|
Deliberately left blank
|
|
|
The same reference was informed
to you through as per the reference cited. On receipt of the ASMT-10 notice,
You have neither filed any objections nor have paid the tax due along with the
corresponding Interest amount. Hence it is construed that, you have no
objection to the above proposal. Therefore Demand and Recovery action has been
initiated under section 73(1) of the TNGST Act/CGST Act 2017 as below:
Defect
|
2017-2018
|
Tax
due(R)
|
Interest
due (Rs) upto 30-12-2023
|
Penalty
due (Rs)
|
|
|
IGST
|
CGST
|
SGST
|
IGST
|
CGST
|
SGST
|
IGST
|
CGST
|
SGST
|
|
|
Deliberately left blank
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
It is further submitted that the
demand has been confirmed during the statutory period of limitation under
section 73(9) and 10 of the TNGST Act, 2017 and therefore is liable to be
quashed.
3. Opposing the prayer,
learned counsel for the respondents would submit that the challenge to the
impugned order in this Writ Petition is without any merits. It is further
submitted that Writ Petition is beyond the period of limitation and therefore
in the light of the decision of the Hon'ble Supreme Court in Assistant
Commissioner (CT) LTU, Kakinada and others v. Glaxo Smith Kline Consumer Health
Care Limited, reported in 2020 SCC OnLine SC 440. He submits
that the petitioner has not replied and therefore the impugned order is not
liable to be quashed.
4. Considered the
submissions of the learned counsel for the petitioner and the respondents. It
is noticed that the impugned order is not a speaking order. It has also not
considered the reply filed by the petitioner on 1-11-2023 which has been
referred to in Item No.3 in the reference column to the impugned order.
5. As the impugned order is
without proper reasoning, it is liable to be set aside and remitted back to the
respondents to pass a fresh order on merits and in accordance with law within a
period of six weeks from the date of receipt of a copy of this order. Writ
Petition is disposed of with the above observation. No costs. Consequently,
connected Writ Miscellaneous Petitions are closed.