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2022 (12) TMI 125 - HC - GSTValidity of assessment order u/s 73 of GST Act - Prescribe procedure under Rule 142 - proper officer to assess the case of petitioner - tax periods June, 2017 to September, 2019 - supply liable to tax under the state GST or IGST - HELD THAT - A perusal of Form GST INS-01 coupled with Rule 139 (1) would show that, the Officer to whom the authorization is given in Form GST-1S can only inspect and search the business records and also seize the same in terms of Rule 139. But, here is a case where the Officer to whom the authorization was given, is also the Officer, who has been declared as a Proper Officer in terms of Section 73 of the CGST Act, for proceeding under the provisions of Sections 73 and 74 of the Act. Further, the Act does not anywhere contemplate an authorization from higher authority for assessing the case of a dealer, falling within the territorial jurisdiction of the Officer. In view of the Notification issued by the Chief Commissioner and as held earlier, the first Respondent is the Proper Officer to proceed against the dealer under Sections 73 and 74 of the Act, more so, when the dealer falls within his territorial jurisdiction - the argument that the first Respondent could not have passed the Assessment Order basing on the said authorization, though appeared to be correct at the first blush, but on a close perusal of the record, coupled with the Notification given, we hold that there is no illegality in first Respondent assessing the case of the Petitioner. Whether the procedure followed by the authorities with regard to passing of the Order under Section 73 of the CGST Act read with Section 20 of the IGST Act is correct? - HELD THAT - Under Rule 142, the Proper Officer shall serve along with the notice issued under section 52 or section 73 or section 74 or section 76 or section 122 or section 123 or section 124 or section 125 or section 127 or section 129 or section 130, a summary thereof electronically in FORM GST DRC-01. 30) Rule 142 (1A), as it stands today, state that the Proper Officer may , which came into effect from 15.10.2020 , before service of notice to the person chargeable with tax, interest and penalty, under sub-section (1) of Section 73 or sub-section (1) of Section 74, as the case may be, communicate the details of any tax, interest and penalty as ascertained by the said officer, in Part A of FORM GST DRC- 01A. Whether intimation under Sub-section (5) of Section 73 and sub-section (5) of Section 74, by issuing notice in FORM GST DRC-01A should be followed? - HELD THAT - In the instant case, as seen from the record, authorization to inspect and search in Form GST INS01 is dated 20.11.2019, and the business premises was searched on 27.11.2019 by the first Respondent. Notice for production of records was issued on 27.11.2019 and the same were submitted by the Petitioner on 21.01.2020 - the entire process of issuing authorization, submission of documents and books of accounts etc., were prior to the amendment of Rule 1A i.e., 15.10.2020, meaning thereby, that the Proper Officer shall , before service of notice under Sub-section 1 of Section 73 or 74, indicate the details of tax, interest and penalty in Form GST DRC-01A. Whether such Forms were issued? - HELD THAT - After following the other mandatory requirements, the impugned Order came to be passed on 05.05.2022. Ergo, it is very much clear that, the procedure, as required under the Act, namely, issuance of Form GST DRC-01A, followed by a reply in Form GST DRC- 06, as contemplated under the Act, have been followed. The Assessment Order makes it very much clear that, the Petitioner was given an opportunity to file documentary evidence i.e., work orders, Form VAT 250 Option to pay at composition under AP VAT 205), VAT-200 returns, filed along with RA bills VAT-501 and 501A certificates filed with A.P. and Telangana. Also GSTR-3B and GSTR-1 reports and details of invoice number, date and period of month which was reported to the respective States to be made available, on or before 15.11.2011, failing which the turnovers, sales/service relating to GST period, attracts levy of tax under GST Act, 2017. Whether a single Assessment Order can be passed for IGST, SGST and CGST? - HELD THAT - It is to be noted that, except stating that single Assessment Order could not have been passed, no provision under law debarring the Authority from following such procedure has been placed on record. Further, the prejudice that is caused in passing single Assessment Order is also not shown. Apart from that, neither IGST nor CGST Act, anywhere prohibit making a single assessment under both the enactments. When the same Officer is authorized to assess the case of the dealer under IGST and SGST, we feel that there is nothing wrong in single assessment being made unless grave prejudice is show, which is not, in the case on hand. In-fact, the prejudice does not even appear to be inherent also in passing the single assessment order. This issue namely as to whether the turnovers falls outside the purview of Section 7 of the IGST and, as such, no tax under Section 5 of IGST can be levied by the first Respondent herein is a factual aspect, for which, this Court under Article 226 of the Constitution of India, cannot embark on investigating the same, more so, when a remedy of Appeal is available to the Petitioner. Hence, the argument that the Assessment Order is hit by Article 286 of the Constitution of India, cannot be gone into and answered in this Writ Petition. There are no merit in the Writ Petition. Accordingly, the Writ Petition is dismissed.
Issues Involved:
1. Jurisdiction of the assessing authority. 2. Proper Officer for assessment. 3. Compliance with procedural requirements under CGST and IGST Acts. 4. Legality of a single assessment order for IGST, CGST, and SGST. 5. Factual determination of intra-state vs. inter-state supply. Issue-wise Detailed Analysis: 1. Jurisdiction of the Assessing Authority: The petitioner contested the imposition of GST by Andhra Pradesh on works executed in Telangana, claiming it was beyond the jurisdiction of Andhra Pradesh authorities. The court noted that the petitioner was assessed by an officer specified in the relevant notification and that no prejudice would be caused by such assessment. It was held that the assessing officer had territorial jurisdiction and was competent to pass the assessment order. 2. Proper Officer for Assessment: The petitioner argued that the first respondent was not the proper officer as per the authorization given. The court referred to Section 2(91) of the CGST Act, which defines "Proper Officer" and concluded that the first respondent, being one of the officers mentioned in the notification, was indeed the proper officer. The court emphasized that the authorization to inspect did not preclude the officer from also assessing the case. 3. Compliance with Procedural Requirements: The petitioner claimed that the procedural requirements under Section 73 of the CGST Act were not followed. The court examined Rule 142 and noted that the proper officer had issued the required forms (GST DRC-01A and GST DRC-01) and provided opportunities for the petitioner to respond. The court found that the procedural mandates were met, and the assessment process was conducted correctly. 4. Legality of a Single Assessment Order for IGST, CGST, and SGST: The petitioner questioned the validity of a single assessment order covering IGST, CGST, and SGST. The court referred to Section 4 of the IGST Act, which authorizes state tax officers to act under the IGST Act. It was held that there was no legal prohibition against a single assessment order, and the same officer could assess under all three statutes. The court found no inherent prejudice in passing a single order. 5. Factual Determination of Intra-State vs. Inter-State Supply: The petitioner argued that the transactions were intra-state supplies within Telangana, not subject to Andhra Pradesh's jurisdiction. The court noted that the assessing authority had examined various records, including income tax returns and e-way bills, to determine the tax liability in Andhra Pradesh. The court held that this factual determination could not be reviewed under Article 226 of the Constitution, as the petitioner had an alternative remedy of appeal. Conclusion: The court dismissed the writ petition, affirming the legality of the assessment order and the jurisdiction of the assessing officer. The procedural requirements were deemed to have been followed, and the single assessment order was upheld. The court declined to investigate the factual determination of intra-state vs. inter-state supply, directing the petitioner to pursue the available appellate remedies.
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