Case Law Details
Krit Kunal Dhawan Vs The State of Assam (Gauhati High Court)
Reasoned order to be passed against the accused taxpayer involved in passing on fake ITC without actual movements of goods
HC held that in a case where assessee is accused of passing on fake Input Tax Credit (ITC) without actual moment of goods, a reasoned order must be passed by Joint Commissioner of State Tax, after acknowledging all the relevant material and contentions that the assessee may produce to satisfy the authorities.
Facts:
Kriti Kunal Dhawan (“the Petitioner”) is engaged in carrying on business in the name and style of eco fuel industries. An investigation was conducted and it was found that the taxpayer has utilized ITC from dubious firms. It has been reported in print and electric media that these dubious firms are involved in bill trading and passing on fake ITC without movement of actual goods therefore, ITC claimed from these firms by the Petitioner are sought to be reversed with levy of interest and penalty as per Assam Goods and Services Tax Act 2017 (“AGST Act”).
The Petitioner was summoned on September 10, 2021 for further investigation and consequently the Petitioner appeared on September 23, 2021 and requested time up-to September 30, 2021. The request made by the Petition was agreed by the authorities but even on September 30, 2021 however, the Petitioner failed to appear.
Therefore a Show Cause Notice in form DRC-01 was issued on October 8, 2021 (“the SCN”) as per Rule 142(1)(a) of the Assam Goods and Service Tax Rules, 2017 (“AGST Rules”).
Issues:
- Whether SCN can be issued on the basis of certain report in print and electronic media?
- Whether the Petitioner should be given an opportunity to appear before the department to produce relevant material and contentions?
Held:
The Hon’ble Gauhati High Court in W.P. No. 5642 of 2021 decided on October 29, 2021 held as under:
- Observed that, the department before issuing a SCN to the Petitioner has not only relied upon print and electronic media, as alleged by the Petitioner, but also found during their investigation that the tax payers had utilized dubious ITC forms.
- Observed that, the department gave time and opportunity to the Petitioner during the investigation to justify the alleged charges against him but the Petitioner had failed to satisfy the authorities and the department had no option but to rely upon the fact that the Petitioner has utilized ITC From dubious firms and further issued a SCN against the Petitioner.
- Held that, though the Petitioner has failed to provided appropriate material and document at the time of the investigation but it would be against the principles of natural justice if the Petitioner would not be given an opportunity to appear before the department with all relevant materials that he may desire to rely upon and satisfy the authorities in their investigation.
- Ordered that, the petitioner shall appear before the Joint Commissioner of State Taxes, Guwahati, on November 8, 2021 at 11 a.m., and the abovementioned authority shall give the Petitioner appropriate consideration upon his attendance and acknowledge all relevant items as well as arguments that he may offer to justify the allegations against him.
- Further ordered that, by following the above mentioned procedure the department shall pass a reasoned order either accepting or rejecting the contentions of the petitioner and further ordered that the SCN shall be kept in abeyance till the reasoned order is not passed.
- Held that, if the reasoned order comes in favor of the Petitioner, the SCN would not be valid but if comes against the Petitioner than a fresh SCN may be issued against the Petitioner.
Relevant Provision:
Rule 142(1)(a) of the AGST Rules:
“142. Notice and order for demand of amounts payable under the Act.
(1) The proper officer shall serve, along with the
(a) notice issued under section 52 or section 73 or section 74 or section 76 or section 122 or section 123 or section 124 or section 125 or section 127 or section 129 or section 130, a summary thereof electronically in FORM GST DRC-01.”
FULL TEXT OF THE JUDGMENT/ORDER OF GAUHATI HIGH COURT
Heard Dr. A. Saraf, learned senior counsel for the petitioner. Also heard Mr. B. Gogoi, learned counsel for the respondent in the Finance and Taxation Department of the Govt. of Assam.
2. Two communications bearing No.ZD1810210008801 and NO.ZD181021000894S both dated 08.10.2021 are assailed in this petition.
3. The brief facts of the case narrated in the two communications are extracted below:-
“During investigation it was found that the taxpayer has utilized ITC from dubious firms bearing the following GSTN numbers 18AAUPG9024G1ZE 18AUTPJ2296G1Z3 18ALPPG5591G3ZM 06ALPPG5591G1ZT 18AOKPR5864B1ZM. It has been reported in print and electric media that these taxpayers are involved in bill trading and passing on fake ITC without movement of actual goods therefore ITC claimed from these firms by the taxpayer are sought to be reversed with levy of interest and penalty as per Assam GST Act 2017.”
“During investigation it was found that the taxpayer has utilized ITC Form dubious firms bearing the following GSTN numbers 18AAUPG9024G1ZE 18AUTPJ2296G1Z3 18ALPPG5591G3ZM 06ALPPG5591G1ZT 18AOKPR5864B1ZM it has been reported in print and electronic media that these taxpayers are involved in bill trading and passing on fake ITC without movement of actual goods therefore ITC claimed from these firms by the taxpayer are sought to be reversed with levy of interest and penalty as per Assam GST Act 2017”
4. A reading of the brief facts contained in the two communications indicates that the notice in the Form GST DRC-01 was issued against the petitioner which is a form under Rule 142(1)(a) of the AGST Rules.
5. It is the contention of the petitioners that firstly the notice could not have been issued on the basis of certain report in print and electronic media to that extent Dr. A. Saraf, learned senior counsel relies upon certain decisions of the Supreme Court.
6. But we have taken note of that apart from the print and electronic media being relied upon it has also been specifically stated in the Form GST DRC-01 that during investigation it was found that the tax payers had utilized dubious ITC forms bearing the GSTN numbers as indicated above.
7. By our earlier order dated 26.10.2021 we required the respondent in the Taxation and Finance department of the Govt. of Assam to produce the records, but Mr. B. Gogoi, learned counsel states that inadvertently there was misunderstanding and on the other hand a communication dated 27.10.2021 containing certain instruction has been produced before the Court. We take note of a specific averment in the communication dated 27.10.2021 which is extracted below:-
“Hence, a summon was issued to the instant Taxpayer on 10.09.2021, for further investigation. The Taxpayer appeared on 23.09.2021 and requested for time up to 30.09.2021. The request of the Taxpayer was conceded. However, the Taxpayer failed to appear on the given date. Therefore, as per Assam GST Act, 2017, a Show-Cause Notice in form DRC-01 was issued on 08.10.2021.”
8. A reading of the said instruction indicates that before issuing the Form GST DRC-01 the petitioners were issued a summon on 10.09.2021 for further investigation. Pursuant thereof, the petitioner appeared on 23.09.2021 and requested time upto 30.09.2021. The said request to defer the investigation up to 30.09.2021 was agreed upon but however the petitioner taxpayer failed to appear on 30.09.2021. On the other hand, Dr. A. Saraf, learned senior counsel for the petitioner upon instruction has made a statement that the petitioner was ready with all relevant materials on 23.09.2021 itself to satisfy the authorities as regards their investigation. But on the said date, the required procedure could not take place.
9. Be that as it may, without taking note of the discordant views, we have to understand that in the aforesaid circumstance that the Form GST DRC-01 issued against the petitioner by the respondent authorities on the premises that in the investigation the petitioner had not satisfied the authorities as regards the ITC they had relied upon and therefore, the authorities had arrived at a view that they had relied upon some dubious ITC for the purpose. As it is apparent that the said view was formed as because the petitioner had not provided appropriate material and document at the time of the investigation and therefore, such Form GST DRC-01 was issued, we are of the view that ends of justice would be met if an opportunity is given to the petitioner tax payer to appear before the respondent Joint Commissioner of State Taxes, Guwahati with all relevant materials that he may desire to rely upon and satisfy the authorities in their investigation pursuant to the earlier summons dated 10.09.2021. Accordingly, as agreed upon by the parties, the petitioner shall appear before the Joint Commissioner of State Taxes, Guwahati on 08.11.2021 on 11.00 am and upon his appearance, the aforesaid authority shall give due audience to the petitioner and take on board all such relevant materials that he may produce as well as the contention that the petitioner may desire to raise.
10. Upon completing the said procedure, the authority shall pass a reasoned order either accepting or rejecting the contention of the petitioner.
11. The reasoned order to be passed shall prevail and till such reasoned order is passed, the Form GST DRC-01 both dated 08.10.2021 shall be kept in abeyance. In the event, the reasoned order goes in favour of the petitioner it has to be understood that the said Form of GST DRC-01 will no longer remain effective and in the event it is against the petitioner, a fresh Form GST DRC-01 may be issued and in doing so adequate time required under the law shall be given to the petitioner before taking any action.
12. Any observation made in this order shall not influence the authorities in any manner. A copy of the communication dated 27.10.2021 be kept on record.
Writ petition stands disposed of in the above terms. Interim order passed earlier stands vacated.
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