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2024 (8) TMI 941 - HC - GSTChallenge 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 - time limit for passing of the order under Sub-Section (9) of Section 73 of the CGST Act, 2017 - Ultra vires of Section 168A of the CGST Act, 2017 - 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 also 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. Taking into account the above, this Court is of the opinion, that the Petitioner herein is 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 05.05.2024 - The Respondents are directed to file their affidavits on or before 19.08.2024.
Issues:
1. Challenge to the issuance of a notification by the Central Board of Indirect Taxes and Customs. 2. Ultra vires of Section 168A of the CGST Act, 2017. 3. Lack of recommendation from the GST Council for the issuance of the notification. 4. Extension of the time limit for passing orders under Section 73(9) of the CGST Act, 2017. 5. The concept of force majeure in relation to the notification. 6. Applicability of the notification to the Assam Goods and Service Tax Act, 2017. 7. Validity of the impugned order pertaining to the Financial Year 2018-19. 8. Entitlement of the petitioner to reliefs proposed in the Financial Bill 2024. 9. Interim protection for the petitioner pending notice. Analysis: The High Court addressed a writ petition challenging a notification issued by the Central Board of Indirect Taxes and Customs. The petitioner contended that the notification, No. 56/2023 dated 28.12.2023, was ultra vires Section 168A of the CGST Act, 2017 due to the absence of a recommendation from the GST Council, which is mandatory for such extensions. The petitioner argued that the notification extended the time limit for passing orders under Section 73(9) of the CGST Act, 2017 without proper authority, as the GST Council had not made any recommendation post the initial extension granted. The petitioner further asserted that the reasons cited for the extension, such as lack of manpower, did not qualify as force majeure, rendering the notification invalid under the law. Additionally, the petitioner highlighted discrepancies between the extension granted under the CGST Act and the corresponding provisions in the Assam Goods and Service Tax Act, 2017, emphasizing that the State GST Authorities could not override the limitations set in the AGST Act based on the impugned notification. The court noted that the impugned order related to the Financial Year 2018-19 and was passed after the purported extension period, making it necessary to review the validity of the order in light of the notification's legality. During the proceedings, the respondents argued that while there was no GST Council recommendation for the notification, steps were being taken to seek ratification. They also mentioned upcoming amendments through the Finance Bill 2024, which could impact the assessment proceedings. The Assam GST authorities contended that they followed the Central GST notifications, indicating the applicability of the impugned notification to Assam GST. The court, after hearing all parties, observed prima facie that the notification did not align with Section 168A of the CGST Act, 2017. It highlighted the need to examine the force majeure aspect and directed the respondents to provide their stand and supporting materials. Consequently, the court granted interim protection to the petitioner, restraining coercive actions based on the impugned assessment order until the next hearing. The respondents were instructed to file affidavits by a specified date for further proceedings.
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