Case Law Details
Maina Devi Choraria Vs Union of India And 6 Ors. (Gauhati High Court)
Gauhati High Court restrains GST authorities from recovery of the amount assessed on the strength of extension of time under section 73(10) vide Notification No.09/2023-CT dated 31/03/2023
Where High Courts through out the country have granted interim relief to carry on the proceedings on the strength of extension of time under section 73(10) of the CGST Act vide Notification No.09/2023-CT dated 31/03/2023 but with a direction not to pass any final orders, the Hon’ble Gauhati High Court has restrained the GST Authorities from recovery of the amount assessed on the strength of extension of time under section 73(10) vide Notification No.09/2023-CT dated 31/03/2023.
The case projected by the Petitioner was that final order under section 73(10) of CGST/SGST Act could not have been passed after 31.12.2023 i.e. three years after 31.12.2020 which was the last date of filing annual return for the year 2018-19. It was further submitted that show cause notices in such matters could not have been issued after 30.09.2023 i.e. three months before 31.12.2023 as mentioned here-in-before.
Inspite of vehement opposition by GST Authorities stating that onset of Covid19 pandemic affected their compliances adversely and therefore, GST Council recommended the extension of time under section 73(10) of the Act as well as that State of Assam adopted the notification issued by Central GST Authorities without issuing any such notification of their own, the Hon’ble Gauhati Court restrained the GST Authorities from recovery of the amount assessed on the strength of extension of time under section 73(10) vide Notification No.09/2023-CT dated 31/03/2023 and issued notice to the GST Authorities to show cause why appropriate reliefs shall not be granted to the Petitioner.
The case was argued by D Saraf, Advocate for the Petitioner, SC Keyal, Advocate for Central GST Authorities and Mr. Bikram Choudhury, Advocate for State GST Authorities.
FULL TEXT OF THE JUDGMENT/ORDER OF GAUHATI HIGH COURT
Heard Mr. D. Saraf, learned counsel for the petitioner. Also heard Mr. K.K. Medhi, learned counsel appearing on behalf of Mr. S.K. Medhi, learned CGC for respondent no.1; Mr. V. Choudhury, learned standing counsel for the Finance Department, respondent nos.2, 4 and 5; and Mr. S.C. Keyal, learned standing counsel for the CGST, respondent nos.3, 6 and 7.
2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the notification no. 09/2023-CT dated 31.03.2023, by virtue of which the time limit provided under Section 73(10) of the CGST Act for the financial years 2017-18, 2018-19 and 2019-20 was respectively extended to 31.12.2023, 31.03.2024 and 30.06.2024. It is projected that the time limit in respect of the petitioner for examining the annual return for the financial year 2018-19 had expired on 31.12.2023. However, on the strength of the impugned notification dated 31.03.2023, show-cause notice was issued to the petitioner for the financial year 2018-19 and accordingly, the said notification has been challenged, inter alia on the ground that the conditions precedent provided in explanation to Section 168(A) was not present on the date when the notification was issued. It is submitted that various Courts of the Country are also in seisin with the challenge similar to one made by the petitioner.
3. The learned standing counsel for the CGST has produced a copy of the relevant extraction of the agenda of 49th CGST council meeting held on 18.02.2023 to project that the issue regarding extension of timelines under Section 73(10) was discussed and recommendation was made for extension of time in view of the situation that prevailed during the Covid-19 period, where employees of the office either could not attend office or they were attending duty on staggered timing. It is submitted that consequently there was a huge pile-up of the files for examination and issuance of process for recovery of tax not paid or short paid or input tax credit wrongly availed or utilized during said period. Accordingly, it is submitted that issuance of show-cause notice was fully justified and therefore he opposes the admission of this writ petition.
4. The learned standing counsel for the State GST and Finance Department have submitted that the State GST had adopted the notification issued by the Central Govt. and therefore, the said notification for extension of time applied on the State propria vigore.
5. In view of the issue raised, let a notice returnable on 10.05.2024 be issued.
6. Requisite extra copies of the writ petition be furnished to the learned CGC and departmental counsel in course of the day.
7. The learned counsel for the petitioner, at this stage, has submitted that pursuant to the show-cause notice, the petitioner has participated in the proceedings and final order has been passed on 09.02.2024.
8. As final order has already been passed and taking note of the fact that similar issues are being examined by various Courts of the Country, the Court is inclined to provide that till further orders of the Court, the recovery of the amount assessed against the petitioner shall not be enforced.
9. List on 10.05.2024.
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