A A Associates v. The Assistant Commissioner (St),
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :21.12.2024
CORAM
THE HONOURABLE MR.JUSTICE MOHAMMED SHAFFIQ W.P. No.38704 of 2024 and W.M.P.Nos.41898, 41900 and 41901 of 2024 A.A.Associates, Partner, A.Karthika, 15, Pallika Thottam Udayampalayam, Chinnavedampatty Post, Coimbatore 641 049.
...
Petitioner Vs.
1.The Assistant Commissioner (ST), Annur Circle, Coimbatore.
2.The State Tax Officer, Annur Assessment Circle, Coimbatore.
... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the records pertaining to Demand order dated 25.02.2023 made in ZD330223125887E under Section 73 of CGST/TNGST Act, 2017 for tax period 2018-2019 and consequent Rectification Order dated 09.03.2023 made in ZD330323047189H, on the file of the second respondent and to quash the same.
For Petitioner : Mr.R.Nandhakumar For Respondents : Mr.G.Nanmaran, Special Government Pleader for R1, R2.
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ORDER
The present writ petition is filed challenging the impugned order passed by the second respondent dated 25.02.2023 relating to the assessment year 2018-19 and the consequential rectification order dated 09.03.2023.
2. The petitioner is registered under the Goods and Services Tax Act, 2017. During the relevant period of 2018-19, the petitioner filed its returns and paid the appropriate taxes. However, during the scrutiny of the petitioner's monthly return, the following discrepancies were noticed viz., i. Mismatch in Liability between GSTR-1 and GSTR-3B ii.Mismatch in ITC claimed between GSTR-3B and GSTR-2A 2.1. Pursuant thereto, a notice in DRC-01 was issued on 28.02.2022, followed by reminders with personal hearing on 13.02.2023 and 18.02.2023. However, the petitioner had neither filed its reply nor availed the opportunity for a personal hearing. Hence, the impugned order came to be passed, confirming the proposal.
3. The impugned order is challenged on the premise that neither the show cause notices nor the impugned order of assessment has been served on 2/
the petitioner by tender or sending it by RPAD, instead it had been uploaded in the GST Portal, thereby, the petitioner was unaware of the initiated proceedings and was thus unable to participate in the adjudication proceedings.
4. It is submitted by the learned counsel for the petitioner that if the petitioner is provided with an opportunity, they would be able to explain the alleged discrepancies.. The learned counsel for the petitioner would then place reliance upon the recent judgment of this Court in the case of M/s.K.Balakrishnan, Balu Cables vs. O/o. the Assistant Commissioner of GST & Central Excise in W.P.(MD)No.11924 of 2024 dated 10.06.2024, to submit that this court has remanded the matter back in similar circumstances subject to payment of 25% of the disputed taxes. It was further submitted that the petitioner is ready and willing to pay 25% of the disputed tax and that they may be granted one final opportunity before the adjudicating authority to put forth their objections to the proposal. It is submitted that there is bank attachment and the same may be lifted to which the learned Special Government Pleader appearing for the respondents does not have any serious objection.
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5. By consent of both parties, the writ petition stands disposed of on the following terms:
a) The impugned order dated 25.02.2023 and the consequential rectification order dated 29.03.2023 are set aside. b) The petitioner shall deposit 25% of the disputed taxes as admitted by the learned counsel for the petitioner and the respondent, within a period of four weeks from the date of receipt of a copy of this order. c) If any amount has been recovered or paid out of the disputed taxes, including by way of pre-deposit in appeal, the same would be reduced/adjusted, from/towards the 25% of disputed taxes directed to be paid. The assessing authority shall then intimate the balance amount out of 25 % of disputed taxes to be paid, if any, within a period of one week from the date of receipt of a copy of this order. The petitioner shall deposit such remaining sum within a period of three weeks from such intimation.
four weeks from the date of receipt of copy of this order. e) Failure to comply with the above condition viz., payment of 25% of disputed taxes within the stipulated period i.e., four weeks from the date of receipt of a copy of this order shall result in restoration of the impugned order.
f) If there is any recovery by way of attachment of Bank account or garnishee proceedings, the same shall be lifted /withdrawn on complying with the above condition viz., payment of 25 % of the disputed taxes. g) On complying with the above condition, the impugned order of assessment shall be treated as show cause notice and the petitioner shall submit its objections within a period of four (4) weeks from the date of receipt of a copy of this order along with supporting documents/material. If any such objections are filed, the same shall be considered by the respondent and orders shall be passed in accordance with law after affording a reasonable opportunity of hearing to the petitioner. It is made clear that if the above conditions viz., 25% of disputed taxes is not complied or objections are not filed within the stipulated period, four weeks respectively from the date of receipt of a copy of this order, the impugned order of assessment shall stand restored.
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6. There shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.
21.12.2024 Speaking (or) Non Speaking Order Index : Yes/ No shk 6/
To:
1.The Assistant Commissioner (ST), Annur Circle, Coimbatore.
2.The State Tax Officer, Annur Assessment Circle, Coimbatore.
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MOHAMMED SHAFFIQ, J.
shk W.P. No.38704 of 2024 and W.M.P.Nos.41898, 41900 and 41901 of 2024 21.12.2024 (1/2) 8/