Expression ‘already pending or decided’ means that it is pending on the date of filing the application seeking an advance ruling

[CA Bimal Jain]

The Hon’ble Bombay High Court in the case of GENERAL MOTORS INDIA PRIVATE LIMITED VERSUS STATE OF MAHARASHTRA, ASSISTANT COMMISSIONER OF STATE TAX PUNE, AUTHORITY FOR ADVANCE RULING MUMBAI. - 2024 (12) TMI 728 - BOMBAY HIGH COURT disposed the writ and held that the proviso to Section 98(2) the Central Goods and Services Tax Act, 2017 (“the CGST Act”) states that the authority shall not admit the application where the question raised in the application is already pending or decided in any proceedings in the case of an applicant under any of the provisions of the SGST. Hence, interim application was disposed of.

Facts:

M/s General Motors India Private Limited (“the Petitioner”) were issued pre-show cause notice dated October 22, 2024 (“the pre-Impugned SCN”) under Form DRC-01A issued by the Assistant Commissioner of State Tax (“the Respondent”) under Section 73(5) of the CGST Act read with Rule 142 (1-A) of the CGST Rules.

The Petitioner filed an application dated December 20, 2023 seeking advance ruling inter alia on the taxability of the sale of land and buildings carried out pursuant to the Asset Purchase Agreement (“APA”) on merits.

The AAR declined to dispose of the Petitioners’ application for advance ruling on merits, which is contrary to the provisions of Section 98 of the CGST Act.

The Petitioner contended that Section 98(6) of the SGST Act requires the Respondent to pronounce its advance ruling in writing within 90 days of receiving the application. This 90-day period has long expired, but to date, the advance ruling has not been pronounced, meanwhile the Respondent issued the Impugned pre-SCN. Based on the same, the Respondent may not decide on the Petitioners’ application, seeking an advance ruling on merits.

Hence, aggrieved by the circumstances, the Petitioner filed the writ petition.

Issue:

Whether expression ‘already pending or decided’ proviso to Section 98(2) of the SGST Act mean and imply that it is pending on the date of filing the application seeking an advance ruling?

Held:

The Hon’ble Bombay High Court in GENERAL MOTORS INDIA PRIVATE LIMITED VERSUS STATE OF MAHARASHTRA, ASSISTANT COMMISSIONER OF STATE TAX PUNE, AUTHORITY FOR ADVANCE RULING MUMBAI. - 2024 (12) TMI 728 - BOMBAY HIGH COURT held as under:

• Noted that, the proviso to Section 98(2) of the CGST Act states that the authority shall not admit the application where the question raised in the application is already pending or decided in any proceedings in the case of an applicant under any of the provisions of the SGST Act. The question raised in the application was not already pending or decided in any proceedings in the case of the Petitioner under any of the provisions of the CGST Act. Therefore, the subsequent issue of the Impugned pre-show cause notice will not bar or come in the way of the Respondent deciding the Petitioners’ application dated December 20, 2023 on merits.
• Observed that, the Respondent cannot avoid deciding the Petitioners’ application dated December 20, 2023 on merits based upon subsequent issues of the Impugned pre-show cause notice dated October 22, 2024. This is more so because the proviso to Section 98(2) of the CGST Act is quite clear, and it uses the expression ‘already pending or decided’. The phrase ‘already pending’ would mean and imply that it is pending on the date of filing the application seeking an advance ruling.
• Directed that, the Respondent to dispose of the Petitioners’ application within three months. This direction is based on the statement made on behalf of the Respondent and also upon considering the provisions of Section 98(6) CGST Act, which require the authority to pronounce the advance ruling in writing within 90 days of receiving the application. In any event, the scope of interference with pre-show cause or even show cause notice is minimal. If, ultimately, the advance ruling authority rules in favour of the Petitioner, then it was pointed out that in terms of Section 103(1) of the CGST Act that such advance ruling will bind not only the Respondent but also the Petitioner.
• Held that, the Petitioners must not rush to this Court bypassing alternate remedies or by filing pre-mature petitions just because they can afford to do so. There is, of late, an increased tendency to rush to this Court and take a chance to see if proceedings before the authorities are stalled even before the authorities have an opportunity to examine the cause shown and make some decision. The same applies to bypassing alternate remedies. Hence, interim application was disposed of.

Our Comments:

Section 98 of the CGST Act means “Procedure on receipt of application”. Section 98(1) of the CGST Act on receipt of an application, the Authority shall cause a copy thereof to be forwarded to the concerned officer and, if necessary, call upon him to furnish the relevant records, provided, where any records have been called for by the Authority in any case, such records shall, as soon as possible, be returned to the said concerned officer. Further 98(2) of the CGST Act, the Authority may, after examining the application and the records called for and after hearing the applicant or his authorised representative and the concerned officer or his authorised representative, by order, either admit or reject the application, however, that the Authority shall not admit the application where the question raised in the application is already pending or decided in any proceedings in the case of an applicant under any of the provisions of this Act: Provided further that no application shall be rejected under this subsection unless an opportunity of hearing has been given to the applicant: Provided also that where the application is rejected, the reasons for such rejection shall be specified in the order.

Section 98(3) of the CGST Act, a copy of every order made under sub-section (2) shall be sent to the applicant and to the concerned officer. Further, 98(4) of the CGST Act states that where an application is admitted under sub-section (2), the Authority shall, after examining such further material as may be placed before it by the applicant or obtained by the Authority and after providing an opportunity of being heard to the applicant or his authorised representative as well as to the concerned officer or his authorised representative, pronounce its advance ruling on the question specified in the application. Furthermore, where the members of the Authority differ on any question on which the advance ruling is sought, they shall state the point or points on which they differ and make a reference to the Appellate Authority for hearing and decision on such question. The Authority shall pronounce its advance ruling in writing within ninety days from the date of receipt of application.

 (Author can be reached at [email protected])