2023 (6) TMI 1300 - HC - GST

Determination of GST / Assessment under GST - To be followed by scrutiny of returns / assessment u/s 61 or not? - Attachment of Bank account of petitioner - requirement of scrutiny of return submitted by the petitioner for the relevant period. Whether proceedings u/s 74 of APGST Act cannot be independently initiated without having recourse to the scrutiny u/s 61 of the said Act? - HELD THAT - Section 73 and 74 are not controlled by Section 61 alone as argued by the petitioner. The proceedings u/s 74 can be taken up by resorting to the audit of accounts u/s 65 also - It should be carefully observed that Section 74 starts with the clause where it appears to the proper officer that any tax has not been paid . The word appears has a wider amplitude subsuming in it not only Section 61 and 65 but also any other credible information from a different source. If the intendment of legislature is to make Section 74 bound by Section 61 and 65 alone, that fact would have been clearly depicted in Section 74. In Doypack Systems Pvt Ltd. V. Union of India 1988 (2) TMI 61 - SUPREME COURT the Apex Court observed thus In the present case as already stated supra the phrase where it appears is a free, unfettered and unbound usage made by legislature and therefore in our view, the source for the proper officer to proceed under this provision can be held to be either under Section 61 or 65 or some other information but cannot be constricted to Section 61 or 65 alone to reach Section 74 cannot be accepted. The decision of High Court of Madras (Madhurai Bench) in Vadivel Pyrotech Private Limited s case 2022 (10) TMI 784 - MADRAS HIGH COURT cited by the petitioner can be distinguished on facts. In that case the writ petitioner filed his return for the Assessment Year 2018-19 and later it was taken up for scrutiny by the proper officer u/s 61 of Tamil Nadu Goods and Services Taxes Act (TNGST Act) by issuing notice in Form ASMT 10 dated 22.12.2021 by pointing out certain discrepancies between GSTR3B GSTR 1 and GSTR 2A returns filed by the petitioner calling upon him to pay the tax of of Rs.13,54,250/- along with interest Rs.13,54,250/- along with interest and it was held that It is trite law that when the Act prescribes the method and manner for performing an act, such act shall be performed in compliance with the said method and manner and no other manner. Thus it is clear that the above observation was made by learned single Judge in the factual back ground that at the inception itself the proceedings were taken worth u/s 61 of TNGST Act but not u/s 74 as in our case. Therefore, the above decision is of no avail to the petitioner - in the present case, this point is decided against the petitioner. Whether the attachment of the bank account of the petitioner is illegal? - HELD THAT - As can be seen that the main allegation under impugned notice dated 06.07.2022 is that the petitioner has passed fraudulent ITC to the purchasers without actual supply of goods/services. In that context while issuing show cause notice to the petitioner, respondent authorities seems to have made provisional attachment of the bank account of the petitioner by resorting to Section 83 of APGST Act.. Since the petitioner has not so far filed his objections/ reply to the notice, at this juncture it cannot be concluded that the attachment is illegal. There are no merits in the writ petition. However, since it is the submission of the petitioner that he received impugned show cause notice only on 16.07.2022 i.e., after expiry of time granted for submitting explanation which was dated 13.07.2022 and though this fact was brought to the notice of the 3rd respondent he refused to receive the explanation and relevant documents, in the interest of justice, it is considered apposite to permit the petitioner to submit his explanation along with relevant material. This writ petition is disposed of giving liberty to the petitioner to file his explanation / objections along with the relevant materials before the 3rd respondent within three (3) weeks from the date of receipt of copy of this order, in which case the 3rd respondent shall receive the said explanation and material and consider the same after affording an opportunity of personal hearing to the petitioner and pass appropriate order in accordance with governing law and rules expeditiously.

Summary

Issues Involved:
1. Whether proceedings under Section 74 of APGST Act can be independently initiated without recourse to scrutiny under Section 61.
2. Whether the attachment of the bank account of the petitioner is illegal.

Summary:

Issue 1: Independent Initiation of Proceedings under Section 74 of APGST Act

The petitioner challenged the show cause notice under Section 74(1) of APGST Act, arguing that it was issued without first conducting scrutiny under Section 61. The petitioner contended that the proper officer must scrutinize the returns and issue a notice for discrepancies before initiating proceedings under Section 74. The court examined the provisions of Sections 59, 61, 65, and 74 of the APGST Act. It concluded that Section 74 allows the proper officer to initiate proceedings based on any credible information, not necessarily limited to scrutiny under Section 61. The term "where it appears" in Section 74 has a broad scope, allowing initiation of proceedings based on audit findings under Section 65 or other credible information. The court rejected the petitioner's argument, stating that scrutiny under Section 61 is not a prerequisite for initiating proceedings under Section 74.

Issue 2: Legality of Bank Account Attachment

The petitioner argued that the attachment of his bank account was illegal as it was done before passing the final assessment order. The respondent contended that the attachment was a provisional measure to protect the state's revenue. The court noted that the attachment was made under Section 83 of the APGST Act, which allows provisional attachment to protect revenue. Since the petitioner had not yet filed objections to the show cause notice, the court could not conclude that the attachment was illegal at this juncture.

Conclusion:

The court found no merit in the writ petition but allowed the petitioner to file his explanation and relevant materials within three weeks. The respondent was directed to consider the explanation and pass an appropriate order after affording an opportunity for a personal hearing. The writ petition was disposed of with no costs, and any pending interlocutory applications were closed.