The Government vide Notification No. 56/2023-Central Tax dated 28/12/2023 has further extended the time limit for issuance of the order u/s 73(9) of the CGST Act, 2017 for recovery of tax not paid or short paid or of input tax credit wrongly availed or utilized for FY 2018-19 & 2019-20 as under:
(i) for the financial year 2018-19, up to the 30th day of April, 2024;
(ii) for the financial year 2019-20, up to the 31st day of August, 2024.
Please note that the aforesaid Notification has been issued by the Government under the power conferred by Section 168A of the Central Goods and Services Tax Act. It is also to be noted that Section 168A of the Central Goods and Services Tax Act was inserted by The Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 (38 of 2020) dated 29.09.2020, w.e.f. 31.03.2020 as under-
168A. Power of Government to extend time limit in special circumstances.
(1) Notwithstanding anything contained in this Act, the Government may, on the recommendations of the Council, by notification, extend the time limit specified in, or prescribed or notified under, this Act in respect of actions which cannot be completed of complied with due to force majeure.
(2) The power to issue notification under sub-section (1) shall include the power to give retrospective effect to such notification from a date not earlier than the date of commencement of this Act.
Explanation. —For the purposes of this section, the expression “force majeure” means a case of war, epidemic, flood, drought, fire, cyclone, earthquake or any other calamity caused by nature or otherwise affecting the implementation of any of the provisions of this Act.’
After perusal of the aforesaid Section 168A, it is crystal clear that the Government can invoke this power only in case wherein the actions under the Act cannot be completed or complied with due to force majeure. Moreover, ‘force majeure’ has been explained as a case of war, epidemic, flood, drought, fire, cyclone, earthquake or any other calamity caused by nature or otherwise
In view of the above, there is no doubt that at present (at the time of issue of Notification No. 56/2023-Central Tax dated 28/12/2023), there is no such ground attributable to ‘force majeure’ which affects the implementation of any of the provisions of the GST Act throughout India. Thus, no hesitation to say that the invocation of Section 168A is an act of grave misuse of legislative provisions.
Further, for the information, please note that in the matter M/s. SRSS Agro Pvt. Ltd. vs. Union of India (R/Special Civil Application No. 19720 of 2023) before the Hon’ble High Court of Gujarat, it was mentioned that the notification dated 31.03.2023 extending the time limit specified under Section 73 of the Act by virtue of the powers under Section 168A of the Act is unjustified as extension has to be for special circumstances. Having once extended the period by virtue of notification dated 05.07.2022, no subsequent extension could be made. In the said matter, the Hon’ble High Court vide its order dated 10.11.2023 has issued the notice to the respondents and further listed on 12.01.2024.
Further, for the information, please note that in the matter M/s. New India ACID Baroda Pvt. Ltd. vs. Union of India (R/Special Civil Application No. 21165 of 2023) and M/S Gajanand Multishop Through Pankajkumar Roshanlal Gandhi (R/Special Civil Application No. 20227 of 2023) both before the Hon’ble High Court of Gujarat, it was mentioned that there is no ground mentioned in the impugned notification no.9 of 2023 dated 31.03.2023 extending the time period for issuance of the show-cause-notice under Sub-section 10 of Section of the Central Goods and Service Tax Act, 2017 (for short “the Act”) while exercising the powers under the Central Board of Indirect Taxes and Customs under Section 168A of the Act. It was submitted that after the year 2022 there was no COVID Pandemic in existence and accordingly the provisions of Section 168A of the Act would not be applicable for extension of time. He also invited the attention of the Court to the explanation to section 168A of the Act and submitted that none of the eventuality mentioned therein existed when the impugned notification was issued by the Central Board of Indirect Taxes and Customs. In the said matter, the Hon’ble High Court vide its order dated 21.12.2023 has issued the notice to the respondents and further listed on 08.02.2024.
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