SCN due date S. 73, Goods and Services Tax - GST

[Akash Dhiran]

As per S. 73, notice is to be issued 3 months prior to order.

For FY20-21, the last date to issue order u/s 73 is 28.02.2025.

View above, what is the last date for SCN. is it 30.11.2024 or 28.11.2024 ?

Posts / Replies

[KASTURI SETHI]

 Last date for issuance of SCN  is 30.11.24.

[VENU K]

In my opinion all such calculations should be based on the following judgment of Supreme Court
M/S. SAKETH INDIA LIMITED AND OTHERS Vs. M/S. INDIA SECURITIES LIMITED

DATE OF JUDGMENT:	10/03/1999

Where the Court relied on another decision and held as below:

Similar contention was considered by this Court in the case of Haru Das Gupta vs. State of West Bengal (1972) 1 SCC 639 wherein it was held that the rule is well established that where a particular time is given from a certain date within which an act is to be done, the day on that day is to be excluded; the effect of defining period from such a day until such a day within which an act is to be done is to exclude the first day and to include the last day. In the context of that case, the Court held that in computing the period of three months from the date of detention, which was February 5th, 1971, before the expiration of which the order or decision for confirming the detention order and continuing the detention thereunder had to be made, the date of the commencement of detention, namely, February 5th has to be excluded; so done, the order of confirmation dated May 5th, 1971 was made before the expiration of the period of three months from the date of detention.

[Amit Agrawal]

Interesting query, having huge ramifications all over India!!!

As per Section (35) of THE GENERAL CLAUSES ACT, 1897, “month” shall mean a month reckoned according to the British calendar. And Section 9 of said act reads as follows:

"Commencement and termination of time.—(1) In any Central Act  or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word “from”, and, for the purpose of including the last in a series of days or any other period of time, to use the word “to”." 

At-least three months prior to 28.02.2025 is 28.11.2024 & NOT 30.11.2024, IMHO. 

The date 28.02.2025 needs to be excluded while calculating ‘At-least three months prior to’. This is because before the word ‘to’, there is another word by ‘prior’. Hence, above-produced Section 9 (i.e. including the last day in the period of time of three months) cannot be applied to given situation.

In other words, the word ‘prior to’ is NOT equivalent to the word ‘to / till’ while applying said Section 9 in my view. 

This is despite the fact that ‘within three months from’ 28.11.2024, 29.11.2024 & 30.11.2024 (i.e. all three days) lies on 28.02.2025. There lies the real conundrum, doesn't it?  

This is because At-least three months prior to 01.03.2025 is 01.12.2024 & not 30.11.2024 or 02.12.2024 and At-least three months prior to 27.02.2025 is 27.11.2024 & not 28.11.2024, IMHO.

Important Note/s: Besides above ground challenging validity of SCN itself, please ensure proper grounds defending your case on merits as well. 'Challenging validity of SCN itself' should not be sole defense. It will be interesting to see how question of law gets ultimately settled on the subject issue raised. And if quantum involved is substantial, one may directly approach jurisdictional HC by way of writ petition challenging validity of SCN itself (i.e. even before adjudication of original adjudicating authority). 

These are ex facie views of mine and the same should not be construed as professional advice / suggestion or recommendation.

[Amit Agrawal]

It would be safe to presume that Tax Dept. will use Section 9 of THE GENERAL CLAUSES ACT, 1897 stating that Section 73(2) of the CGST Act, 2017 is the 'time termination provision' and the words 'prior to' used therein is nothing but 'to or till or upto' while reading a 'time termination provision'. 

Interesting time ahead!!

These are ex facie views of mine and the same should not be construed as professional advice / suggestion or recommendation.

[Amit Agrawal]

Dear Professional Colleagues,

Issue raised here is interesting!

One can find numerous case-laws where time-limitation in 'time commence clauses' w.r.t the words' within' or 'from' is discussed and that question of law is fairly settled.

But, I am unable to find rulings where where time-limitation in 'time termination clauses' is the issue involved.

As I understand that it is very good possibility that Section 9 of the general clauses act can be applied in subject situation under discussion here, though I am not sure. 

I explained my conundrum in earlier post too.

Hence, I would be grateful if you can quote some case-laws where 'time termination clauses' read with Section 9 of the general clauses act is discussed. 

Requested accordingly. 

[Sadanand Bulbule]

Dear Sri. Amit ji

Hope the following ruling might be useful in the present context of Section 9 of the General Clauses Act:

2024 (6) TMI 111 - GAUHATI HIGH COURT

Other Citation: 2024 (84) G. S. T. L. 492 (Gau.)

SURENDRA STEELS PVT. LTD. VERSUS THE UNION OF INDIA, THE PRINCIPAL COMMISSIONER CENTRAL GOODS AND SERVICE TAX AND CENTRAL EXCISE GUWAHATI, THE ASSISTANT COMMISSIONER CENTRAL GOODS AND SERVICE TAX DIVISION I, THE SUPERINTENDENT GOODS AND SERVICE TAX AND CENTRAL EXCISE RANGE -1A GUWAHATI.

Transitional Input Tax Credit - time limitation - Inadmissibility of availing credit beyond thirty days - recovery of tax with interest and penalty - maintainability and entertainability of a writ petition under Article 226 of the Constitution of India, despite alternative remedy provided by the relevant statutes.

Maintainability and entertainability of a writ petition under Article 226 of the Constitution of India - HELD THAT:- After making a survey of a number of decisions, it has been observed that when the writ petition raises a pure question of law and if investigation into facts is unnecessary, the High Court can entertain a writ petition in its discretion even though the alternative remedy is not availed of. It has been observed that where the controversy is a purely legal one and it does not involve disputed questions of fact, but only questions of law, then it should be decided by the High Court instead of dismissing the writ petition on the ground of an alternative remedy being available - It is also settled proposition of law that the High Court in its extra-ordinary and discretionary writ jurisdiction under Article 226 can examine the decision of a subordinate tribunals, bodies or officers to see whether it has acted wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuses to exercise a jurisdiction vested in them, or there is a manifest error in the face of the record.

Time Limitation - HELD THAT:- It is within a period of thirty days from the appointed day, that is, 01.07.2017, an assessee like the petitioner has to comply with the provisions contained in sub-section [5] of Section 140 of the CGST Act, 2017. No provision in the CGST Act, 2017 regarding calculation of period of time has been brought to the notice of the Court by the learned counsel for the parties. The Constitution Bench, in Dilip Kumar and Company [2018 (7) TMI 1826 - SUPREME COURT], has observed that an Act of Parliament/Legislature cannot foresee all types of situations and all types of consequences. It is for the Court to see whether a particular case falls within the broad principles of law enacted by the Legislature. It has been observed that there are many occasions where the language used and the phrases employed in the statute are not perfect. In all the Acts and Regulations, made either by the Parliament or the Legislature, the words and phrases as defined in the General Clauses Act and the principles of interpretation laid down in the General Clauses Act are to be necessarily kept in view.

From plain and simple language of Section 9 of the General Clauses Act, it is discernible that if particular time-period is given from a certain date within which an act is to be done, the day on that date is to be excluded and meaning thereby, the period is to be calculated by excluding the day from which the period is to be reckoned. The provisions of sub-section [2] of Section 9 of the General Clauses Act has made it evidently clear that Section 9 applies to all Central Acts made after the third day of January, 1868, meaning thereby, Section 9 is applicable to the CGST Act, 2017.

For the expression, ‘within a period of thirty days from the appointed day’, occurring in sub-section [5] of Section 140 of the CGST Act, 2017, the period has to be reckoned by excluding the appointed day, which is 01.07.2017. If after exclusion of the appointed day [01.07.2017], the period of thirty days is counted then the thirtieth day falls on 31.07.2017. Thus, this Court is of the unhesitant view that the impugned TRAN Invoices, which were entered in the recipients’ Books of Accounts on 31.07.2017 were within the period of thirty days from the appointed day [01.07.2017], as required in sub-section [5] of Section 140 of the CGST Act. Consequently, the findings recorded in Paragraph 7.0 of the Order-in-Original dated 23.11.2023 by the Adjudicating Authority is not sustainable in law.

Petition allowed.

No.- WP(C)/476/2024

Dated.- February 20, 2024