Case Law Details
Koperla Vijaya Bhaskar Vs Deputy Assistant Commissioner ST II (Andhra Pradesh High court)
In Koperla Vijaya Bhaskar vs Deputy Assistant Commissioner ST II (Andhra Pradesh High Court), the petitioner, a registered GST dealer providing manpower services to APSPDCL for spot electricity billing, challenged rectification orders passed under Section 161 of the CGST Act.
Following an inspection, the petitioner was directed to produce books of accounts for the period 2019–2020 to 2022–2023 but failed to do so. Authorities identified that the petitioner had received TDS amounts without declaring them in GSTR-3B returns, resulting in alleged suppression of outward supplies amounting to ₹2,53,21,014/-. A pre-intimation notice in Form DRC-01A dated 28.11.2022 and a show cause notice in Form DRC-01 dated 30.12.2022 under Section 74 of the GST Act were issued and served via email and portal upload. The petitioner did not file objections. Consequently, an assessment order dated 17.04.2023 was passed raising a demand of ₹1,01,05,575/- towards tax, interest, and penalty.
The petitioner’s GST registration had earlier been cancelled on 23.06.2022 for non-filing of returns but was later restored pursuant to court directions. After the assessment order, the petitioner filed GSTR-3B returns and rectification applications dated 06.07.2023 and 08.07.2023 under Section 161. When these were not initially considered, he filed another writ petition, following which the authorities passed rectification orders after issuing notice dated 18.01.2025 and conducting a personal hearing on 20.01.2025. The petitioner then challenged these rectification orders in the present writ petition.
The respondents contended that the writ petition was not maintainable due to the availability of an effective alternative remedy of appeal. They argued that the assessment order was passed after following due procedure and that rectification applications were duly considered.
The High Court noted that the assessment order dated 17.04.2023 was passed after issuing notices and that the petitioner had not filed objections despite receiving them. Importantly, the petitioner had not challenged the assessment order itself. The Court observed that Section 161 empowers authorities to rectify errors apparent on the face of record and found that the rectification applications were duly considered after providing an opportunity of personal hearing.
The Court held that no material was placed on record to substantiate allegations of procedural illegality. It further held that disputed questions of fact cannot be examined under Article 226 jurisdiction and that the petitioner ought to have availed the statutory appellate remedy. Consequently, the writ petition was dismissed, leaving it open to the petitioner to avail remedies available under law.
FULL TEXT OF THE JUDGMENT/ORDER OF ANDHRA PRADESH HIGH COURT
1. The petitioner is a registered dealer under Goods and Service Tax Act, having engaged in the business of providing man power services to APSPDCL for the work of continuous spot electricity billing in specified areas. Pursuant to inspection conducted by the 2ndrespondent, the petitioner was directed to submit all the books of accounts in relation to his business for the tax period from 2019-2020 to 2022-2023 for causing necessary verification. It appears that the petitioner has not produced the books of accounts before the 2nd respondent.
2. It was identified that the petitioner has received TDS amounts, but failed to declare the same in GSTR-3B returns. In view thereof, it came to light that the petitioner has suppressed outward supplies to a tune of Rs.2,53,21,014/- and proposed to tax on the said turn over. Accordingly, the petitioner was issued pre-intimation notice in Form DRC-01A, dt.28.11.2022. As the petitioner did not file objections, he was served with show cause notice in Form DRC-01, dt.30.12.2022 under Section 74 of GST Act, 2017 and the same was served through mail to the petitioner, apart from uploading the same on the portal. Having received the show cause notice, the petitioner has not filed objections to the same. In those circumstances, the 2nd respondent passed assessment order dt.17.04.2023 against the petitioner raising a demand of Rs.1,01,05,575/- towards tax interest and penalty in relation to the period from 2019-2020 to 2022-2023.
3. It is further case of the petitioner that, his registration under the GST act was cancelled by order dt.23.06.2022 as the petitioner did not file GSTR-3B returns. Questioning the said order, the petitioner filed writ petition vide W.P.No.8386 of 2023 before this Court and the same was disposed of by order dt.04.05.2023, directing the petitioner to make an application for revocation of cancellation of registration as per Notification No.3 of 2023, dt.31.03.2023 issued by Central Board of Indirect Taxes and Customs. In pursuance thereof, the petitioners’ registration got restored.
4. Be that as it may, after the order of assessment, the petitioner subsequently filed GSTR-3B returns and filed rectification applications dt.06.07.2023 and 08.07.2023 under Section 161 of CGST Act. When the said applications were not considered, he approached this Court by filing writ petition vide W.P.No.27307 of 2024 and the same was disposed of directing the authorities to pass appropriate orders on the rectification application filed by the petitioner within a period of four (4) weeks from the date of receipt of the order. Pursuant to the said order, the applications of the petitioner were considered and accordingly rectification orders were issued and the same are being impugned in the present writ petition.
5. The respondents filed counter-affidavit inter alia contending that the writ petition is not maintainable as the petitioner has got an effective alternative remedy of appeal against the orders under challenge. It was further contended that the tax payer having received the notices did not choose to file any objections to the same. In the absence of explanation, the respondents have rightly passed assessment order. It was further contended that, the rectification applications filed by the petitioners were considered and accordingly demand was raised and there is no illegality in the orders impugned.
6. Heard counsel for the petitioner and Smt.Disha Chowdary, learned Assistant Government Pleader for Commercial Taxes.
7. Perused the record.
8. A perusal of the record, it is clear that the respondent authorities have passed assessment order dt.17.04.2023 after following the procedure contemplated under law. It is also not in dispute that the petitioner having received pre-intimation notice and show cause notice, did not choose to file objections to the said notices and therefore the respondents having verified that the petitioner has suppressed outward supplies, passed assessment order.
9. It is pertinent to note that, the petitioner did not challenge the said assessment order dt.17.04.2023. After receipt of the said order, the petitioner made applications for rectifications on dt.06.07.2023 and 08.07.2023 under Section 161 of CGST Act. Further, the said applications were also considered and accordingly the orders under challenge were passed by the respondents, which are under challenged in the present writ petition.
10. On perusal of the averments made in the affidavit filed in support of the writ petition, absolutely nothing is stated as to the illegality committed by the respondent authorities except making bald allegations that the respondents have not followed the procedure contemplated under law, nothing is placed on record to substantiate the said contention. Further, on perusal of the record, it is succinctly clear that before passing orders on the rectification applications, the petitioner was issued notice dt.18.01.2025 asking him to attend for personal hearing to be conducted on 20.01.2025. Accordingly, the petitioner attended for personal hearing on the said date and the objections raised by him were also considered and passed orders on the rectification applications dt.06.07.2023 and 08.07.2023, which are being impugned in the present writ petition.
11. As already noted supra, the petitioner has not challenged the assessment order dt.17.04.2023. Further, as per Section 161 of GST Act, the authorities are empowered to rectify any error which is on the face of record in such decision or order or notice or certificate or any other document. In the case on hand, as observed, the applications filed by the petitioner were considered and orders were passed. If at all, the petitioner is agreed the said orders, he ought to have challenged the same by filing appeal as provided under the Act. Therefore, the present writ petition cannot be entertained in view of involvement of disputed questions of fact, which cannot be gone into while exercising power under Article 226 of the Constitution of India.
12. For the foregoing reasons, this Court is not inclined to exercise its extraordinary original jurisdiction vested in it by virtue of Article 226 of the Constitution of India and accordingly the writ petition is dismissed leaving it open to the petitioner to avail the remedies available under law.
There shall be no order as to costs. As a sequel, pending applications, if any shall stand closed.
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