Case Law Details
Abhiram Marketing Services Limited Vs Union of India (Chhattisgarh High Court)
High Court Dismisses Petition Challenging Notification No. 56/2023 Due to Availability of Alternative Remedy Under Section 107 of CGST Act
Petitioner is a registered taxpayer with GSTIN under CGST & SGST. The petitioner was a dealer engaged in the business of trading stoves, ranges, grates and cookers etc. During COVID, CBDT issued certain notifications extending time limit for compliance of any action by authorities or tax payers. Notification No.56/2023- Central Tax dated 28.12.2023 was issued u/s 168-A of CGST by extending the limitation for concluding the adjudication of show cause notice issued u/s 73 for the tax period 2019-20 till 31.08.2024. However, no such notification was issued under SGST. Assistant Commissioner of State Tax issued SCN dt 29.05.2024 for period 2019-20 proposing to levy tax u/s 73 on the ground that the Petitioner claimed excess Input Tax Credit (“ITC”) to the tune of Rs.40,22,339/-. In absence of any reply order dt.27.08.2024 has been passed confirming the tax liability of Rs. 43,75,104/- and penalty in a sum of Rs.4,37,510/- along with interest in a sum of Rs.34,17,616/- u/s 50 GST Act.
It was argued by the appellant that though an appeal u/s 107 GST Act lies to the appellate authority but extension of time granted to conclude the proceedings u/s 73 for the year 2019-20, can be agitated before the court. Impugned order was passed against the petitioner without authority of law and jurisdiction. SCN and impugned order alongwith the summary order, are beyond the time specified in Notification No. 4/2021-Central Tax, dated 28.02.2021. Invocation of Section 168A of CGST Act to issue notification No. 56/2023, without there being any corresponding Notification issued
under the SGST Act is illegal and without jurisdiction. Reliance is placed on the decision of the Gauhati High Court in M/s. Barkataki Print & Media Services, Dhrubajyoti Barkotoky & Others v. Union of India & others {2024 (9) TMI 1398 – Gauhati High Court} wherein the impugned Notification
No. 56/2023 has been declared ultra vires the provisions of Section 168A of the GST Act. On the other hand, revenue argued that since the petitioner has alternative efficacious remedy of appeal under Section 107, this petition is not maintainable.
After hearing both the parties HC have held that petitioner is seeking declaration of Notification No. 56/2023 to be ultra vires on the ground that the corresponding notification has not been issued by the state Government. The petitioner has alternative efficacious remedy of appeal u/s 107 of the CGST Act. Hence, it is not case where petitioner is remediless. Hence, writ petition is dismissed.
FULL TEXT OF THE JUDGMENT/ORDER OF CHHATTISGARH HIGH COURT
1. Heard K.P.Amarnath Reddy, learned counsel for the petitioner, Mr. Ramakant Mishra, learned Deputy Solicitor General for the respondent No. 1, Mr. Shashank Thakur, learned Deputy Advocate General for the State/respondents No. 2 and 3 as well as Mr. Maneesh Sharma, learned counsel for the respondent No. 4.
2. The petitioner has prayed for the following relief(s):
“(a) Issue a Writ of Mandamus or any other appropriate writ or order or direction thereby declaring the Notification No.56/2023- Central Tax dated 28.12.2023 (“Impugned Notification”) issued by the Respondent No.4 under Section 168-A of the Central Goods and Services Tax Act, 2017 by extending the limitation for concluding the adjudication of show cause notice issued under Section 73 for the tax period April, 2019 to March, 2020 till 31.08.2024 as ultra-vires Section 168-A of the Central Goods and Services Tax Act, 2017 (“CGST Act”), AND
ANNEXURE P/3
(b) Issue a Writ of Mandamus or any other appropriate writ or order or direction declaring the action of the Respondent 3 is passing the Impugned order dated 27.08.2024 without there being any corresponding Notification issued under Section 168-A of the Chhattisgarh Goods and Services Tax Act, 2017 (“CGGST Act”) as akin to Notification No.56/2023-Central Tax dated 28.12.2023 as ultra-vires Section 168-A of the Chhattisgarh Goods and Services Tax Act, 2017 also manifestly arbitrary and violative Article 14 of the Constitution; AND
ANNEXURE-P/1 ANNEXURE-P/3
(c) Issue a Writ of Mandamus or any other appropriate writ or order or direction by setting aside impugned Order dated 08.2024 and proceedings in Form GST DRC-07 dt.27.08.2024 Ref No: ZD220824026521R issued by the Respondent No.1 by confirming the tax liability in a sum of Rs.43,75,104/- and penalty in a sum of Rs.4,37,510/- along with interest in a sum of Rs.34,17,616/- under Section 50 of the GST Act, for the tax period April, 2019 to March, 2020 as time barred, as illegal, arbitrary and beyond time; AND
ANNEXURE-P/1
(d) Grant any such other relief as the Hon’ble Court may deem fit and proper in the circumstances of the ”
3. The facts, in brief, as projected by the petitioner is that the petitioner Abhiram Marketing Services is a registered taxpayer with GSTIN 22AAICS2960C1ZP on the rolls of Respondent 3 under the provisions of CGST Act, 2017 and also under SGST Act, 2017. The petitioner was a dealer engaged in the business of trading stoves, ranges, grates and cookers etc. In view of COVID pandemic, the respondent No.4 by exercising powers conferred under Section 168A of the Central Goods and Services Tax Act, 2017, vide notification No. 35/2020, Central Tax, dated 03.04.2020, has extended the time limit for compliance of any action by authorities or tax payer falling during the period 20.3.2020 to 29.6.2020 was extended till 30.06.2020 and vide Notification No.14/2021- Central Tax, dated 1.5.2021 the time limit for compliance of any action by authorities or tax payer falling during the period 15.4.2021 to 30.5.2021 was extended to 31.5.2021. Thereafter Notification No. 13/2022- Central Tax, dated 5.7.2022 extended time limit for issue of order under Section 73(10) for tax period 2017-18 till 30.09.2023 but there is no reference to “force majeure” conditions in the Notification. Later, Notification No.9/2023-Central Tax, dated 31.3.2023 was issued under Section 168A of the CGST Act and in partial modification of Notification No.35/2020- Central Tax, dated 3.4.2020, Notification No.14/2021- Central Tax dated 1.5.2021 and Notification No.13/2022- Central Tax, dated 5.7.2022, extending the limitation for concluding the adjudication of show cause notice issued under Section 73 for the tax period 2019-20 till 30.06.2024, thereby extending the limitation for issuing show cause notice under Section 73 for the tax period 2019-20 from 31.12.2023 to 31.03.2024. Similar notification in Notification No.9/2023-State Tax in No.F.10- 23/2023/CT/V(46) dated 30.10.2023 was issued by the Respondent No.2 under Section 168A of the SGST Act. Another Notification No.56/2023- Central Tax, dated 28.12.2023 was issued under Section 168A of the CGST Act and in partial modification of Notification No.35/2020-Central Tax, dated 3.4.2020, Notification No. 14/2021- Central Tax, dated 01.05.2021, Notification No.13/2022- Central Tax, dated 05.07.2022 and Notification No.9/2023- Central Tax, dated 31.3.2023, extending the limitation for concluding the adjudication of show cause notice issued under Section 73 for the tax period 2019-20 till 31.8.2024, thereby extending the limitation for issuing show cause notice under Section 73 for the tax period 2019-20 from 31.03.2024 to 30.05.2024. However, it is pertinent to note here that no such corresponding notification was issued by the Respondent No.2 under Section 168A of the SGST Act.
4. Reddy submits that respondent No. 3 based on the records available on the GST portal has issued show cause notice dated 29.05.2024 for the tax period 2019-20 proposing to levy tax under Section 73 of the GST Act on the ground that the Petitioner claimed excess Input Tax Credit (“ITC”) to the tune of Rs.40,22,339/-. However, the petitioner could not file reply to the show cause notice, issued by the respondent No.3. In absence of the reply, respondent No.3 went ahead and passed the impugned order dated 27.08.2024 confirming the tax liability in a sum of Rs. 43,75,104/- and penalty in a sum of Rs.4,37,510/- along with interest in a sum of Rs.34,17,616/ under Section 50 of the GST Act. He further submits that though against the impugned order, an appeal lies to the appellate authority under Section 107 of the Act, however, the extension of time granted to conclude the proceedings under Section 73 for the year 2019-20, vide Notification No.56/2023- Central Tax dated 28.12.2023 issued by the respondent No. 4 and being contrary to Section 168A of the CGST/SGST Acts, can only be agitated before this Court. Thus, aggrieved by the impugned order passed fastening tax liability against the petitioner without authority of law and jurisdiction, this petition is filed before this Hon’ble High Court invoking Article 226 of the Constitution of India.
5. It is submitted by Reddy that the show cause notice dated 29.05.2024 and order dated 27.08.2024 alongwith the summary order dated 27.08.2024 are beyond the time specified in Notification No. 4/2021-Central Tax, dated 28.02.2021. Invocation of Section 168A of the CGST Act to issue notification No. 56/2023, Central Tax, dated 28.12.2023 without there being any corresponding Notification issued under the SGST Act is illegal and without jurisdiction. Even there is no recommendation of the GST Council for issuing Notification No. 56/2023- CT and the invocation of Section 168A of the CGST Act multiple times in respect of same financial year is illegal and has been issued without competence. Mr. Reddy submits that similar proceedings have been stayed by this Hon’ble Court in WPT No. 25/2024 vide its interim order dated 21.03.2024. Further reliance is placed on the decision of the Gauhati High Court in M/s. Barkataki Print & Media Services, Dhrubajyoti Barkotoky & Others v. Union of India & 4 others {2024 (9) TMI 1398 – Gauhati High Court} wherein the impugned Notification No. 56/2023 CT dated 28.12.2023 has been declared ultra vires the provisions of Section 168A of the GST Act. In the present case also, the State Government has not issued the corresponding Notification under the Chhattisgarh Goods & Service Tax Act, 2017 as was not done in the State of Assam.
6. On the other hand, Ramakant Mishra, learned Deputy Solicitor General of India/respondent No. 1 as well as Mr. Shashank Thakur, learned Deputy Advocate General for the State/respondents No. 2 and 3 submit that since the petitioner has alternative efficacious remedy of appeal under Section 107 of the Act of 2017, this petition is not maintainable. Even otherwise, in essence, the petitioner is seeking issuance of a corresponding Notification under the Chhattisgarh GST Act 2017 and seeks declaration of the Notification No. 56/2023 to be ultra vires on this ground only. Even otherwise, the petitioner has not made any any ground seeking indulgence of this Court or for declaring any Notification ultra vires.
7. We have heard learned counsel for the parties, perused the pleadings and documents appended
8. It is an admitted position that there since the petitioner has alternative efficacious remedy of appeal under Section 107 of the CGST Act of The petitioner is seeking declaration of Notification No. 56/2023 dated 28.12.2023 to be ultra vires on the ground that the corresponding notification has not been issued by the respondent No. 2/State Government. That cannot be a ground for seeking declaration of the notification impugned herein to be ultra vires. Even otherwise, no ground worth consideration has been raised by the petitioner in this petition and the petitioner is always at liberty to take recourse to the remedy of appeal as has been provided under Section 107 of the CGST Act, 2917. It is not a case where the petitioner is remediless. Hence, we are of the considered opinion that this is not a fit case where this Court should exercise its powers under Article 226 of the Constitution of India and as such, this petition, being devoid of merit, is accordingly dismissed.
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