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2024 (8) TMI 455 - HC - GSTExtention of time limit as for issuing notice / passing the order u/s 73(9) - Challenge to action on the part of the Central Board of Indirect Taxes and Customs in issuance of a notification bearing No. 56/2023 dated 28.12.2023 - notification so issued by the Central Board of Indirect Taxes and Customs is ultra vires Section 168A of the CGST Act, 2017 or not, on the ground that there is no recommendation of the GST Council which is the mandatory requirement for the purpose of issuance of the said notification? HELD THAT - It prima facie appears that the notification bearing No.56/2023 is not in consonance with the provisions of 168(A) of the Central GST Act, 2017. If the said notification cannot stand the scrutiny of law, all consequential actions so taken on the basis of such notification would also fail. This Court finds that an examination would be required as regards the applicability of the force majeure in respect to the notification bearing No. 56/2023 taking into account the contents of the Minutes of the 49th Meeting of the GST Council. However for the purpose of deciding the same, this Court is of the opinion that an opportunity has to be granted to the Respondent Authorities to place on record their stand as well as bringing on record the materials on which they claim the applicability of the force majeure. This Court is of the opinion, that the Petitioners herein are entitled to an interim protection pending the notice. Till the next date, no coercive action shall be taken on the basis of impugned assessment order dated 26.04.2024. The Respondents are directed to file their affidavits on or before 19.08.2024 - List accordingly.
Issues:
Challenge to the issuance of a notification by the Central Board of Indirect Taxes and Customs under Section 168A of the CGST Act, 2017 without a recommendation from the GST Council. Validity of the notification bearing No. 56/2023 dated 28.12.2023 extending the time limit for passing orders under Section 73(9) of the CGST Act, 2017. Applicability of force majeure in extending the period for passing orders under the CGST Act, 2017. Comparison of provisions under the Assam Goods and Service Tax Act, 2017 with the CGST Act, 2017 regarding extension of time limits. Impugned order passed post the extended period and its validity. Interim protection for the Petitioners pending further proceedings. Affidavits to be filed by the Respondents. Analysis: 1. The petitioners challenged the Central Board of Indirect Taxes and Customs' issuance of Notification No. 56/2023 dated 28.12.2023 under Section 168A of the CGST Act, 2017 without a recommendation from the GST Council. The notification extended the time limit for passing orders under Section 73(9) of the CGST Act, 2017 beyond the recommendations of the GST Council. 2. The petitioners contended that the notification was ultra vires the CGST Act, 2017 as it lacked the mandatory recommendation from the GST Council. They argued that the reasons for the extension, related to lack of manpower for audit and assessment, did not constitute force majeure, rendering the notification invalid. 3. Additionally, the petitioners highlighted the disparity between the provisions of the Assam Goods and Service Tax Act, 2017 and the CGST Act, 2017 regarding the extension of time limits, emphasizing that the State GST Authorities cannot nullify the limitation provisions set out in the AGST Act, 2017. 4. The Respondents, on the other hand, argued that the notification was issued based on a recommendation from the GST Implementation Committee and that steps were being taken for GST Council ratification. They mentioned upcoming amendments through the Finance Bill 2024 but acknowledged that the enactments were yet to come into force. 5. The Court observed that the notification prima facie did not comply with Section 168(A) of the CGST Act, 2017. It noted that all actions based on the notification would fail if it did not stand legal scrutiny, and directed the Respondents to file affidavits by a specified date. 6. Considering the arguments and submissions, the Court granted interim protection to the Petitioners, preventing coercive action based on the impugned assessment order until the next date of hearing. The Court also indicated the need for further examination regarding the applicability of force majeure and required the Respondent Authorities to present their stand and supporting materials.
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