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GST - Case Laws
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2024 (5) TMI 319 - CALCUTTA HIGH COURT
Time Limitation for filing appeal - condonation of delay - Appellate Authority has the jurisdiction and/or competence to condone the delay beyond the prescribed period of one month provided for filing an appeal under Section 107(4) of the said Act? - HELD THAT:- It is found that the observations made by the Appellate Authority that there is no scope under the provisions of the said Act read with corresponding Chapter and Section of the said Act for condoning the delay beyond four month cannot be sustained. Such finding is set aside.
It may be noticed that the petitioner did not file any application for condonation of delay before the Appellate Authority. The petitioner, however, says that before the application under Section 5 of the Limitation Act could be filed the appeal was dismissed on the ground of limitation without giving an opportunity to the petitioner - Be that as it may, since the petitioner has not filed an application for condonation of delay, this Court cannot consider whether there is any sufficient cause for condoning the delay.
Thus, no relief can be granted in favour of the petitioner at this stage - The writ petition is accordingly disposed of.
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2024 (5) TMI 318 - CALCUTTA HIGH COURT
Time Limitation - Refusal on the part of the appellate authority to condone the delay in maintaining the appeal under Section 107 of the West Bengal Goods and Services Tax Act, 2017 - determination under Section 73 of the said Act.
Whether the appellate authority had failed to exercise jurisdiction in rejecting the application for condonation of delay, inter alia, on the ground that the same was filed beyond the maximum period of four months from the date of communication of the order?
HELD THAT:- An identical issue had fell for consideration before the Hon’ble Division Bench of this Court in the case of S.K. CHAKRABORTY & SONS VERSUS UNION OF INDIA & ORS. [2023 (12) TMI 290 - CALCUTTA HIGH COURT]. The Division Bench of this Court, while considering the scope and ambit of Section 107 of the said Act and the applicability of Section 5 of the Limitation Act 1963 on the basis of the provisions contained in Section 29(2) of the Limitation Act 1963, and by placing reliance on the judgment delivered by the Hon’ble Supreme Court in the case SUPERINTENDING ENGINEER/ DEHAR POWER HOUSE CIRCLE BHAKRA BEAS MANAGEMENT BOARD (PW) SLAPPER & ANOTHER VERSUS EXCISE AND TAXATION OFFICER, SUNDER NAGAR/ASSESSING AUTHORITY [2019 (11) TMI 6 - SUPREME COURT]], had concluded that in absence of non obstante clause rendering Section 29(2) of the Limitation Act 1963, non applicable and in absence of specific exclusion of Section 5 of the Limitation Act, 1963, it would be improper to read implied exclusion thereof.
The appellate authority is not denude of its power to condone the delay beyond one month from the prescribed period of limitation as provided for in Section 107(4) of the said Act.
The appellate authority had failed to exercise jurisdiction in refusing to consider the application for condonation of delay in its proper perspective, since the same was filed beyond the prescribed period of four months from the date of communication of the order appealed against - order passed by the Appellate Authority in rejecting the appeal on the ground of delay is set aside - petition disposed off.
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2024 (5) TMI 317 - RAJASTHAN HIGH COURT
Violation of principles of natural justice - notice under Section 46 of the Act has not been given to the petitioner - primary contention of petitioner is that provisions of Section 46 of the Act was not complied with and notice was not given to the petitioner who was a registered person - HELD THAT:- Since there is non-obstante clause under Section 62 of the Act, no proceedings could have taken place under Section 74 of the Act. It is not required to accept the said arguments for the very reason that this is not a case where the registered person failed to furnish the return rather, the petitioner has filed the NIL return. Therefore, there was no requirement to give notice to the petitioner under Section 46 of the Act. The present is a case where search and seizure had taken placed under Chapter XIV of the Act and in pursuance of search and seizure, summons were given under Section 70 of the Act to the petitioner to give evidence.
Consequently, thereupon the evidence of petitioner was recorded and after recording of evidence, petitioner was afforded three opportunities of personal hearing and thereafter, the present assessment order has been passed - there are no violation of principles of natural justice as the petitioner himself has admitted his GST liability in evidence given by him and the person who has himself given evidence, cannot be permitted to be cross-examined by his own counsel.
Since present is a case where there is no violation of principles of natural justice, it is not inclined to entertain the writ petition and the same is accordingly, dismissed.
Petition dismissed.
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2024 (5) TMI 316 - CALCUTTA HIGH COURT
Validity of assessment order - Utilization of Input Tax Credit - dismissed on the ground that it is an appealable order - Applicability of section 5 of the Limitation Act, 1963 - impugned assessment order in the writ petition was stayed subject to the condition that the appellant/assessee deposits 10% of the disputed tax within a time frame - HELD THAT:- The stand taken by the Department of Commercial Taxes, Government of West Bengal, the amount of Rs. 63,71,353/- has been transferred to the Government of West Bengal - the assessment order, which was the subject-matter of challenge in the writ petition can no longer survive.
The appeal is allowed, the order passed in the writ petition is set aside and the writ petition is allowed and the impugned assessment order dated 21st August, 2023 is set aside - the respondent/department is directed to refund the 10% pre-deposit made by the appellant pursuant to the interim order granted by this Court within eight weeks from the date of receipt of server copy of this order.
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2024 (5) TMI 315 - CALCUTTA HIGH COURT
Condonation of delay in filing an appeal before the appellate authority - Appeal u/s 107 of the WBGST Act, 2017 - appellate authority failed to exercise jurisdiction in rejecting the application for condonation of delay, inter alia, on the ground that the same was filed beyond one month from the prescribed period of limitation, as provided in Section 107(4) of the said Act - HELD THAT:- An identical issue had fell for consideration before the Hon’ble Division Bench of this Court in the case of S.K. Chakraborty & Sons [2023 (12) TMI 290 - CALCUTTA HIGH COURT]. The Division Bench of this Court, while considering the scope and ambit of Section 107 of the said Act and the applicability of Section 5 of the Limitation Act 1963 on the basis of the provisions contained in Section 29(2) of the Limitation Act 1963 and by placing reliance on the judgment delivered by the Hon’ble Supreme Court in the case Superintending Engineer/Dehar Power House Circle Bhakra Beas Management Board (PW) Slapper and another versus Excise and Taxation Officer Sunder Nagar/Assessing Authority [2019 (11) TMI 6 - SUPREME COURT], had concluded that in absence of non obstante clause rendering Section 29(2) of the Limitation Act 1963, non-applicable and in absence of specific exclusion of Section 5 of the Limitation Act, 1963, it would be improper to read implied exclusion thereof. Having regard to the above, in my view the appellate authority is not denude of its power to condone the delay beyond one month from the prescribed period of limitation as provided for in Section 107(4) of the said Act.
The appellate authority had failed to exercise jurisdiction in refusing to entertain the application under Section 5 of the Limitation Act, since the same was filed beyond one month, beyond the prescribed period of Limitation as provided for in Section 107(4) of the said Act.
The explanation provided by the petitioner in the application under Section 5 of the Limitation act is satisfactory and delay has been sufficiently explained. Having regard thereof the delay in preferring the appeal under Section 107 of the said Act is condoned and appeal is restored to its original file and number.
Petition disposed off.
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2024 (5) TMI 314 - MADRAS HIGH COURT
Time Limitation for filing refund claim - Impact of COVID-19 Pandemic - whether refund claim has to be filed by the exporter two years from the date of shipment? - HELD THAT:- In this case, the exports were made by the petitioner between 24.04.2018 to 25.02.2019. It is evident that the last date for filing the refund claim would have expired at the time when the country was under partial/intermittent/full lockdown due to outbreak of Covid-19 pandemic from third week of March 2020. The Hon'ble Supreme Court taking note of this earlier extended the period of limitation. Taking note of the same, the Central Government also promulgated an ordinance called Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Ordinary 2020, which was replaced by TOLA Act 2020. The Central Government has now issued notification No.13/2022-Central Tax dated 15.07.2022. By virtue of the above notification, the period from 1st day of March 2020 to 28th of February 2022 for computation for period of limitation for filing refund claim U/s.54 or under 55 of the CGST Act 2017 has been excluded.
It is noticed that neither the 1st respondent nor the 2nd respondent had the benefit of the above notification when the orders were passed. Under these circumstances, impugned order upholding the rejection of the refund claim of the 2nd respondent are set aside and the case is remitted back to the 2nd respondent to reconsider the petitioner's refund claim afresh in the light of the above mentioned notification.
Petition allowed by way of remand.
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2024 (5) TMI 313 - MADRAS HIGH COURT
Rejection of refund claim - Export of services - Export of software development services - petitioner submitted that the first respondent has wrongly affirmed the order of the second respondent by confusing the status of the subsidiary as a distinct person in accordance with explanation 1 in Section 8 of IGST Act, 2017 - HELD THAT:- The impugned order passed by the first respondent fairly concludes that the petitioner has satisfied the requirements of Section 2(6)(i) to (iv) of IGST Act, 2017.
Admittedly, the petitioner and its subsidiary are two distinct entities and therefore, it cannot be said that the petitioner has not satisfied the requirements of Section 2(6)(v) of IGST Act, 2017. The doctrine of the authority for advance Ruling IN RE: SEGOMA IMAGING TECHNOLOGIES INDIA PRIVATE LIMITED [2018 (12) TMI 650 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA] cannot be applied to the facts of this case - It cannot be said that the petitioner and its subsidiary are not merely establishment of a distinct person in accordance with the explanation I in Section 8 of the IGST Act, 2017.
The second respondent is directed to process the re-fund claim of the petitioner together with interest payable in accordance with the provisions of the Act as expeditiously as possible, preferably within a period of 12 weeks from the date of receipt of a copy of this order.
The writ petition is allowed.
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2024 (5) TMI 312 - RAJASTHAN HIGH COURT
Time limitation for filing appeal - petitioner did not file any appeal either within the period of limitation as prescribed under Section 107 of the RGST Act, 2017/ the CGST Act, 2017 or within the maximum period thereafter which could be condoned - liability of tax with interest and penalty on royalty - HELD THAT:- Present is a case where the petitioner did not even file appeal and allowed the order passed in assessment proceedings to become final and thereafter approached this Court by filing writ petition seeking to challenge the determination of tax, interest and penalty by the competent authority vide order dated 09.02.2023. Present is not a case where the order under Section 74 of the RGST Act, 2017/ the CGST Act, 2017 levying tax along with interest and penalty was passed without giving any opportunity of hearing to the petitioner. Even according to the petitioner, he was issued show cause notice and thereafter, impugned order was passed. In the writ petition, no plausible explanation has been offered as to why the petitioner did not take recourse to the remedy of statutory appeal.
It, therefore, appears that the petitioner consciously did not choose to take recourse to the remedy of appeal as provided under Section 107 of the RGST Act, 2017/the CGST Act, 2017, but waited for the expiry of the period of limitation for filing appeal as also the maximum period of delay which could be condoned in the exercise of powers conferred upon the appellate authority under the provisions of Section 107 of the RGST Act, 2017/ the CGST Act, 2017.
Having not preferred an appeal, the petition in the present case, in view of the decision of Hon'ble Supreme Court in the case of ASSISTANT COMMISSIONER (CT) LTU, KAKINADA & ORS. VERSUS M/S. GLAXO SMITH KLINE CONSUMER HEALTH CARE LIMITED [2020 (5) TMI 149 - SUPREME COURT] is not maintainable.
Petition dismissed.
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2024 (5) TMI 311 - RAJASTHAN HIGH COURT
Time limitation - appeal not filed within the period of limitation as prescribed under Section 107 of the RGST Act, 2017/ the CGST Act, 2017 - Challenge to Show Cause Notice - Levy of tax liability along with interest and penalty on Royalty - HELD THAT:- Present is a case where the petitioner did not even file appeal and allowed the order passed in assessment proceedings to become final and thereafter approached this Court by filing writ petition seeking to challenge the determination of tax, interest and penalty by the competent authority vide order dated 13.03.2023. Present is not a case where the order u/s 74 of the RGST Act, 2017/ the CGST Act, 2017 levying tax along with interest and penalty was passed without giving any opportunity of hearing to the petitioner. Even according to the petitioner, he was issued show cause notice and thereafter, impugned order was passed.
In the writ petition, no plausible explanation has been offered as to why the petitioner did not take recourse to the remedy of statutory appeal. It, therefore, appears that the petitioner consciously did not choose to take recourse to the remedy of appeal as provided under Section 107 of the RGST Act, 2017/the CGST Act, 2017, but waited for the expiry of the period of limitation for filing appeal as also the maximum period of delay which could be condoned in the exercise of powers conferred upon the appellate authority under the provisions of Section 107 of the RGST Act, 2017/ the CGST Act, 2017.
Having not preferred an appeal, the petition in the present case, in view of the decision of Hon'ble Supreme Court in the case of ASSISTANT COMMISSIONER (CT) LTU, KAKINADA & ORS. VERSUS M/S. GLAXO SMITH KLINE CONSUMER HEALTH CARE LIMITED [2020 (5) TMI 149 - SUPREME COURT], is not maintainable.
Petition dismissed.
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2024 (5) TMI 310 - MADRAS HIGH COURT
Validity of assessment order - denial of input tax credit - demand of differential input tax - input tax credit based on the wrong GSTIN wrongly availed - HELD THAT:- As far as the denial of input tax credit is concerned, there appears to be discrepancy in the GST and the number given by the Supplier in the invoice raised by the Supplier on the petitioner. The petitioner can get suitable certificate from the supplier that the sale was indeed made to the petitioner.
It is noticed that the petitioner had filed returns for the assessment year 2017-2018 on 30.04.2022, which is the belated returns filed by the petitioner. In the return that was filed belatedly by the petitioner, the petitioner has accepted the short payment declared as the taxable turnover and yet had failed to pay the tax in time. The petitioner paid the tax only on 04.06.2022 - There is an inordinate delay in payment admitted tax liability in the return that was filed on 30.04.2022 for the assessment year 2017-2018. The petitioner cannot take advantage of its own mistake and state that the petitioner is not liable to pay penalty on account of belated filing of returns in GSTR 9 on 30.04.2022.
There is no merit in the submission of the learned counsel for the petitioner, inasmuch as tax was belatedly paid on 04.06.2022. The interest on belated payment of tax for the month of July, 2017, was remitted by the petitioner only on 27.12.2022. The payment was not within 30 days from the date of issuance of the Show Cause Notice dated 22.09.2022. The Show Cause Notice dated 22.09.2022 preceded an audit, issuance of audit report in GST ADT-02 on 19.08.2022 - the Writ Petition is not maintainable. It is therefore liable to be dismissed.
The petitioner can give proper explanation for the discrepancy in the GST number and in the invoices raised by the supplier, namely Vinvent Chemilab Private Limited and Moorthy Industries - Petition dismissed.
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2024 (5) TMI 309 - KARNATAKA HIGH COURT
Refund claim of encashed amount by the revenue - Direction to withdraw recovery proceedings by issuing a demand draft equivalent to the Bank Guarantee - circular dated 18.03.2020 - HELD THAT:- It is deemed just and appropriate to dispose of this petition by directing the respondent to refund the aforesaid amount of Rs.11,21,840/- encashed by the respondent on 01.02.2024 within a period of one month from today. It is further directed that immediately upon the respondent refunding the aforesaid amount back to the petitioner, petitioner would furnish a fresh bank guarantee within a period of one week thereafter which would be valid for a period of one year.
Petition disposed off.
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2024 (5) TMI 308 - MADRAS HIGH COURT
Validity of assessment order - order challenged on the ground that the petitioner's reply was disregarded - violation of principles of natural justice - HELD THAT:- The petitioner's reply was disregarded by categorising such reply as an unauthorised reply. It is unclear as to why the reply was described as unauthorised. In any event, the impugned order is vitiated by non consideration of the petitioner's reply. Consequently, such order is unsustainable.
The impugned order dated 29.12.2023 is set aside and the matter is remanded for reconsideration. The respondent is directed to provide a reasonable opportunity to the petitioner, including a personal hearing, and thereafter issue a fresh order within two months from the date of receipt of a copy of this order.
Petition disposed off by way of remand.
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2024 (5) TMI 307 - MADRAS HIGH COURT
Wrong availment of transitional Input Tax Credit - request for an adjournment was not responded to and that a personal hearing was not provided in breach of sub-section (4) of Section 75 of the Tamil Nadu Goods and Services Tax Act, 2017 - violation of principles of natural justice - HELD THAT:- The reply dated 20.12.2023 of the petitioner refers to the death of the mother of one of the partners on 11.12.2023. On account of the same, the petitioner requested for further time to reply to the show cause notice. The respondent did not respond to the request for adjournment and instead issued the impugned order. While a personal hearing was offered under the reminder dated 16.12.2023, the order is unsustainable because the request of the petitioner for an adjournment was not considered and no personal hearing was offered pursuant to such reply.
The impugned order is quashed and the matter is remanded for re-consideration. The petitioner is permitted to submit a reply to the show cause notice within fifteen days from the date of receipt of a copy of this order. Upon receipt thereof, the respondent is directed to provide a reasonable opportunity, including a personal hearing, and thereafter issue a fresh order within a period of two months from the date of receipt of the petitioner's reply.
Petition disposed off.
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2024 (5) TMI 306 - MADRAS HIGH COURT
Violation of principles of natural justice - cancellation of GST registration of petitioner - mismatch between the petitioner's GSTR 1 and GSTR 3B returns - HELD THAT:- On perusal of the impugned order, it appears that the tax liability pertains to a mismatch between the petitioner's GSTR 1 and GSTR 3B returns. Since the petitioner's GST registration was cancelled, at a minimum, the petitioner has little reason to continually monitor the GST portal.
The petitioner submits that the petitioner agrees to remit 10% of the disputed tax demand as a condition for remand.
The principles of natural justice demand that the petitioner be provided an opportunity to contest the tax demand. Therefore, the impugned order is quashed and the matter is remanded for reconsideration subject to the condition that the petitioner remits 10% of the disputed tax demand as agreed to within a maximum period of two weeks from the date of receipt of a copy of this order.
The Writ Petition is disposed off.
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2024 (5) TMI 305 - MADRAS HIGH COURT
Validity of assessment order - order challenged on the ground that documents submitted by the petitioner were not duly considered and that the petitioner was not provided a reasonable opportunity - violation of principles of natural justice - HELD THAT:- The entire tax liability is on account of the disparity between the petitioner's GSTR 3B return and the auto-populated of GSTR 2A return. In accordance with Circular No.183, the petitioner obtained a certificate from the supplier albeit belatedly. The reply of the petitioner indicates that documents in support of the contention that the purchases were genuine were submitted. In these circumstances, it is just and necessary that the petitioner be provided an opportunity to effectively deal with the tax demand after putting the petitioner on terms.
The impugned order is set aside on condition that the petitioner remits a sum of Rs. 1,00,000/- towards the disputed tax demand - Petition allowed.
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2024 (5) TMI 304 - MADRAS HIGH COURT
Liability of tax arising on account of inadvertent error - mismatch between the petitioner's GSTR 1 and GSTR 3B returns - error was committed by providing details pertaining to the same invoice more than once - HELD THAT:- The petitioner's explanation was disregarded as unacceptable and as an after-thought merely on the ground that the petitioner did not amend the GSTR 1 statement on or before March 2019. In the face of the documents submitted by the petitioner, the matter requires reconsideration so as to ascertain whether the purchasers indeed did not avail of excess input tax credit on the basis of the duplicate invoices. For such reason, the impugned order call for interference.
The respondent is directed to provide a reasonable opportunity to the petitioner, including a personal hearing, and thereafter issue a fresh order within a period of two months from the date of receipt of a copy of this order - Petition allowed by way of remand.
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2024 (5) TMI 303 - MADRAS HIGH COURT
Validity of assessment order - classification of oil coolers as heat exchangers - to be classified within HSN 8419 or 8708 - main grievance of the petitioner is that the Chartered Engineer's certificate was disregarded while concluding that oil coolers should be classified under chapter 8708 instead of 8419 - HELD THAT:- The impugned order is dated 30.12.2023 and the period of limitation, without condonation, expires by the end of this month. Since the petitioner challenged the order by way of this writ petition, which was filed on or about 16.03.2024, it is just and necessary that if a statutory appeal is filed, such appeal is received and disposed of on merits.
The petition is disposed of by permitting the petitioner to file a statutory appeal before the appellate authority within three weeks from the date of receipt of a copy of this order.
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2024 (5) TMI 269 - DELHI HIGH COURT
Violation of principles of natural justice - impugned order does not take into consideration the reply submitted by the Petitioner and is a cryptic order - demand including penalty - HELD THAT:- The impugned order, however, after recording the narration records that no satisfactory reply and no substantial documents were submitted by the taxpayer - The Proper Officer has opined that the taxpayer has not filed a satisfactory reply nor substantial documents.
The observation in the impugned order dated 29.12.2023 is not sustainable for the reasons that the reply dated 23.12.2023 filed by the Petitioner is a detailed reply with supporting documents. Proper Officer had to at least consider the reply on merits and then form an opinion. He merely held that the reply is not satisfactory and no substantial documents have been submitted by the taxpayer which ex-facie shows that the Proper Officer has not applied his mind to the reply submitted by the petitioner - Further, if the Proper Officer was of the view that any further details were required, the same could have been specifically sought from the Petitioner. However, the record does not reflect that any such opportunity was given to the Petitioner to clarify its reply or furnish further documents/details.
The impugned order dated 29.12.2023 cannot be sustained and is set aside. The Show Cause Notice is remitted to the Proper Officer for re-adjudication. The Proper Officer is directed to withdraw all punitive actions taken against the petitioner pursuant to impugned order dated 29.12.2023, inter-alia, blocking of credit ledger and the provisional attachment of property including bank account, if any - Petition disposed off.
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2024 (5) TMI 268 - DELHI HIGH COURT
Violation of principles of natural justice - impugned order does not take into consideration the replies submitted by the Petitioner and is a cryptic order - HELD THAT:- The impugned order after recording the narration records that the reply uploaded by the taxpayer is incomplete, not duly supported by adequate documents and unable to clarify the issue - The observation in the impugned order dated 30.12.2023 is not sustainable for the reasons that the replies dated 25.10.2023, 02.11.2023 and 14.11.2023 filed by the Petitioner are detailed replies with supporting documents. Proper Officer had to at least consider the reply on merits and then form an opinion. He merely held that the reply is unsatisfactory, incomplete, not duly supported by adequate documents and unable to clarify the issue which ex-facie shows that Proper Officer has not applied his mind to the reply submitted by the petitioner.
Further, if the Proper Officer was of the view that any further details were required, the same could have been specifically sought from the Petitioner. However, the record does not reflect that any such opportunity was given to the Petitioner to clarify its replies or furnish further documents/details.
The impugned order dated 30.12.2023 cannot be sustained and is set aside. The show cause notice is remitted to the Proper Officer for re-adjudication - Petition disposed off.
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2024 (5) TMI 267 - ALLAHABAD HIGH COURT
Scope of SCN - adjudicating authority has traveled beyond the scope of adjudication notice inasmuch as against show cause notice issued proposing to create demand of GST - Violation of essential requirements of rules of natural justice - HELD THAT:- No useful purpose may be served either in keeping the present petition or calling for a counter affidavit or relegating the petitioner to the forum of appeal. Once the Act requires by way of a mandatory provision that the demand arising under an adjudication order may not exceed the demand for which show cause notice may have been issued, there is no room to entertain any doubt as to that. Also, rules of natural justice are far too well established to allow any exception to be made in that regard. Unless, the petitioner had been put to notice with respect to the demand proposed to be created by the adjudication order and unless he had been given adequate opportunity to present his case, the order that may arise may remain procedurally defective.
The writ petition is disposed off.
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