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2023 (10) TMI 789 - HC - GSTDemand raised in SCN or not - penultimate paragraph of the impugned notice - Impugned notice is only a proposal under Section 73(5) of the CGST Act, 2017 read with Rule 142(1A) of the CGST Rules, 2017 - HELD THAT - There is a police threat in penultimate paragraph of the impugned notice in Form GST DRC-01A bearing reference Case ID No.DAR No.751/2023(GST) as it asks the petitioner to pay the amount. However, such threat cannot be enforced directly. The Jurisdictional Assessing Officer namely the second respondent to issue a proper notice under Section 79 after observing procedure prescribed under Rule 88C of the CGST Rules, 2017. As a matter of fact, the second respondent now has invoked Section 79 by referring to Rule 88C of the CGST Rules, 2017 and has issued none on 13.09.2023. It appears to have been in contravention of the procedure prescribed under Rule 88C of the CGST Rules, 2017. However, the aforesaid recovery notice has to be challenged separately. At the same time, the proceedings initiated pursuant to the impugned DRC can neither be stayed nor interfered with. Therefore, this writ petition challenging the impugned notice in DRC-01A dated 07.09.2023 bearing reference Case ID No.DAR No.751/2023 (GST) is liable to be dismissed. Considering the fact that the notice under Section 79 has been issued only on 13.09.2023 under Section 79 of the CGST Act, 2017, recovery proceedings under the recovery notice shall be kept in abeyance for a period of 10 days for the petitioner to work out remedy in the manner known to law. Petition dismissed.
Issues involved: Challenge to impugned notice dated 07.09.2023 issued under Section 73(5) of the CGST Act, 2017 and Rule 142(1A) of the CGST Rules, 2017. Police threat in the notice demanding payment. Invocation of Section 79 and issuance of recovery notice on 13.09.2023.
The writ petition challenged the impugned notice dated 07.09.2023 issued in Form GST DRC-01A under Section 73(5) of the CGST Act, 2017. The notice was related to an audit conducted for the Assessment Years 2017-2018 up to 2021-2022. The notice was deemed as a proposal, not a final determination, as it provided an opportunity for the petitioner to submit responses by a specified date. The impugned notice contained a police threat demanding payment, which was considered unenforceable directly. The proper procedure required the Jurisdictional Assessing Officer to issue a notice under Section 79 after following the prescribed rules, such as Rule 88C of the CGST Rules, 2017. Rule 88C outlined the manner of dealing with differences in tax liability reported in statements of outward supplies and returns, emphasizing the steps to be taken by the registered person upon receiving an intimation of differential tax liability. Subsequently, the second respondent invoked Section 79 and issued a recovery notice on 13.09.2023, seemingly in contravention of the procedure prescribed under Rule 88C of the CGST Rules, 2017. The court noted that the challenge to this recovery notice would need to be pursued separately. The court ruled that the proceedings initiated based on the impugned notice could not be stayed or interfered with, leading to the dismissal of the writ petition challenging the notice dated 07.09.2023. The court granted liberty to the petitioner to challenge the recovery notice dated 13.09.2023 through appropriate legal means. Additionally, the petitioner was directed to respond to the impugned notice in Form GST DRC-01A. Considering the issuance of the notice under Section 79 on 13.09.2023, recovery proceedings under the recovery notice were ordered to be kept in abeyance for ten days to allow the petitioner to seek legal remedies. In conclusion, the writ petition was dismissed with liberty granted to challenge the recovery notice, and no costs were awarded. The connected writ miscellaneous petitions were also closed as a result of the judgment.
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