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Held by Hon’ble High Court of Telangana
In the case of
M/s Rays Power Infra Private Limited Vs Superintendent of Central Tax (Writ Petition No. 298 of 2024)
The petitioner is engaged in the business of generation of electricity through solar plants. The GST returns filed by the petitioner for the period of July, 2017 to March, 2019 were subject to audit. The petitioner was informed about tax liability during audit proceedings on account of wrong availment of ITC and ITC availed with respect to exempted supply. Upon receipt of initial audit observation, the petitioner discharged the entire tax liability alongwith interest. The final audit report was issued much after payment of GST liability. Post audit, the respondent issued show cause notice to the petitioner under Section 74 of CGST Act and confirmed the demand through DRC-07. The petitioner contended that it falls under purview of Section 73(1) and 73(5) of CGST Act and therefore, SCN under section 74 is not sustainable. Whereas, the respondent contended that this is the case of fraud and willful misstatement.
The Hon’ble High court held that the intention of Section 73(5) of CGST Act is very clear that if the taxpayer clears all the tax liability prior to issuance of SCN then the taxpayer shall not be liable to any additional tax by way of interest or penalty. Section 73 expects the taxpayer to clear all the tax liability at the earliest to avoid any stringent coercive recovery measures including imposition of penalty. The provisions of Section 73(1) are very exhaustive and intend to cover all unpaid or wrongly availed tax benefits. Further, Section 74 would come into play only if the conditions stipulated in Section 73 are not met by the taxpayer. The element of fraud or misstatement or suppression of fact would arise only if the taxpayer fails to meet the provisions of Section 73(5).
Therefore, the impugned order is liable to be set aside.
関連記事: 事業の閉鎖、廃止、または譲渡におけるGSTの適用について
Relevant legal extracts of the law is reiterated below for ready reference:
“73. Determination of tax not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilized for any reason other than fraud or any willful misstatement or suppression of facts
(1) Where it appears to the proper officer that any tax has not been paid or short paid or erroneously refunded, or where input tax credit has been wrongly availed or utilized for any reason, other than the reason of fraud or any wilful mis statement or suppression of facts to evade tax, he shall serve notice on the person chargeable with tax which has not been so paid or which has been so short paid or to whom the refund has erroneously been made, or who has wrongly availed or utilized input tax credit, requiring him to show cause as to why he should not pay the amount specified in the notice along with interest payable thereon under section 50 and a penalty leviable under the provisions of this Act or the rules made thereunder.
…
(5) The person chargeable with tax may, before service of notice under sub-section (1) or, as the case may be, the statement under sub-section (3), pay the amount of tax along with interest payable thereon under section 50 on the basis of his own ascertainment of such tax or the tax as ascertained by the proper officer and inform the proper officer in writing of such payment.
(6) The proper officer, on receipt of such information, shall not serve any notice under sub-section (1) or, as the case may be, the statement under sub-section (3), in respect of the tax so paid or any penalty payable under the provisions of this Act or the rules made thereunder.
(7) Where the proper officer is of the opinion that the amount paid under sub-section (5) falls short of the amount actually payable, he shall proceed to issue the notice as provided for in sub-section (1) in respect of such amount which falls short of the amount actually payable.
(8) Where any person chargeable with tax under subsection (1) or sub-section (3) pays the said tax along with interest payable under section 50 within thirty days of issue of show cause notice, no penalty shall be payable and all proceedings in respect of the said notice shall be deemed to be concluded.”
関連記事: 第43回GST評議会会議の提言 | 2021年5月28日
The Petitioner made following submission:
被申立人は以下の通り主張した:
In the given case, The issue for consideration is when the petitioner has discharged the entire tax liability alongwith interest immediately upon the finding of the audit team. Can the proceedings be subsequently initiated under Section 74 of the CGST Act?
The Hon’ble High Court made following findings and discussions:
ただし、脱税を目的とした詐欺、意図的な虚偽陳述、または事実の隠蔽以外の理由によるものに限る。
高等裁判所は以下の通り判示した: