9911796707
TMI Blog2022 (12) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Telangana. (ii) The Petitioner is said to be a registered dealer in both the States even before the introduction of Goods and Services Tax, Act, 2017, ['GST Act'] and on introduction of GST, migrated to GST, in both States having different GSTIN Numbers and is on the rolls of the second Respondent. (iii) It is further averred that the first Respondent on an authorization given by Joint Commissioner, Kurnool, conducted inspection of the business premises of the Petitioner and after perusing all its books of accounts, records etc., assessed the case of the Petitioner though he is not a "Proper Officer" and though there is no authorization from Joint Commissioner to make an Assessment. It is alleged that, an Assessment Order came to be passed on 05.05.2022, imposing GST on certain Works Contracts said to have been executed in the State of Telangana and were reported to tax paid thereon in the State of Telangana. (iv) It is said that, though the first Respondent has accepted and dropped levy of GST on certain Works Contract executed by the Telangana Branch of the Petitioner, in the State of Telangana, but imposed GST on certain Work Contracts, on the ground that in one of the inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther authorization to assess the case of the prosecution. (v) It is further stated that, in view of Article 286(1) of the Constitution of India, no law of a State shall impose or authorize imposition of tax on the supply of goods or of services or both, where the supply takes place (a) outside the State, and (b) in the course of import of the goods or services or both into or export of the goods or services or both out of the territory of India, (vi) The first Respondent, who is the Deputy Assistant Commissioner (ST), is not the Officer having territorial jurisdiction to assess the case of the Petitioner and it is only the Assistant Commissioner (ST), Kurnool - II Circle, who is competent to assess the case of the Petitioner. 4) Having regard to the above, Sri. G. Narendra Chetty, learned Counsel appearing for the Petitioner, would submit that the Order under challenge has to be set-aside. Apart from that, while reiterating the averments made in the affidavit filed in support of the Writ Petition, the learned Counsel for the Petitioner took us through the Notification No.37, dated 30th June, 2017, issued by the Chief Commissioner of State Tax, to contend that, as the Order imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner or the Officer of the Central Tax who is assigned that function by the Commissioner in the Board." 9) Section 3 of C.G.S.T. Act, deals with "Administration", which reads as under: The Government shall, by notification, appoint the following classes of officers for the purposes of this Act, namely:- (a) Principal Chief Commissioners of Central Tax or Principal Directors General of Central Tax, (b) Chief Commissioners of Central Tax or Directors General of Central Tax, (c) Principal Commissioners of Central Tax or Principal Additional Directors General of Central Tax, (d) Commissioners of Central Tax or Additional Directors General of Central Tax, (e) Additional Commissioners of Central Tax or Additional Directors of Central Tax, (f) Joint Commissioners of Central Tax or Joint Directors of Central Tax, (g) Deputy Commissioners of Central Tax or Deputy Directors of Central Tax, (h) Assistant Commissioners of Central Tax or Assistant Directors of Central Tax, and (i) any other class of officers as it may deem fit: Provided that the officers appointed under the Central Excise Act, 1944 shall be deemed to be the officers appointed under the provisions of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration is, whether the first Respondent is competent to pass the impugned Order? [The objection raised by the learned Counsel for the Petitioner that the first respondent is not the territorial Assessing Authority and that the second Respondent herein is the territorial Assessing Authority]. 14) Section 73 of the CGST Act, speaks only of Proper Officer. "Proper Officer" is defined in Section 2(91) of the CGST Act, which states that the 'Proper Officer', for the acts to be performed under the CGST Act means, the Commissioner or the Officer of the Central Tax, who is assigned that function by the Commissioner in the Board. 15) The Chief Commissioner of State Tax, while exercising power under Section 2(91) read with sub-section 1 of Section 5 of APGST Act, 2017, issued Notification, dated 30th June, 2017, stating that the "Proper Officer" for various functions, referred to in the CGST Act, would be Officers as mentioned against each function in the list enclosed to the said Order. 16) Insofar as Sections 73 and 74 are concerned, which deals with "non willful evasion" and "willful evasion", the Proper Officers are (i) Deputy Assistant Commissioner, (ii) Assistant Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that there is no illegality in first Respondent assessing the case of the Petitioner. 20) The next issue that arises for consideration is, whether the procedure followed by the authorities with regard to passing of the Order under Section 73 of the CGST Act read with Section 20 of the IGST Act is correct? 21) Sections 73 and 74 of the CGST Act fall under Chapter XV, which deal with "Demands and Recovery". Section 73(1), 73(4), 73(5) and 73(6), reads as under: "(1) Where it appears to the proper officer that any tax has not been paid or short paid or erroneously refunded, or where input tax credit has been wrongly availed or utilised for any reason, other than the reason of fraud or any wilful-misstatement or suppression of facts to evade tax, he shall serve notice on the person chargeable with tax which has not been so paid or which has been so short paid or to whom the refund has erroneously been made, or who has wrongly availed or utilised input tax credit, requiring him to show cause as to why he should not pay the amount specified in the notice along with interest payable thereon under section 50 and a penalty leviable under the provisions of this Act or the rules made th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may pay the amount of tax along with interest payable thereon under Section 50 on the basis of his own ascertainment of such tax or as ascertained by the proper officer and inform the proper officer in writing of such payment. 25) Similarly, sub-section 5 of Section 74 makes it clear that, before service of show cause notice under sub-section (1), such person may pay the amount of tax along with interest payable under section 50 and a penalty equivalent to 50% of such tax on the basis of his own ascertainment of such tax or the tax as may be ascertained by the proper officer and inform the proper officer in writing of such payment. 26) The Scheme of the Act is that, a person be given an opportunity of making payment towards tax before taking steps under sub-section (1). If he makes payment under subsection (5), then he gets benefit under sub-section (6), whereby, the proper officer on receipt of payment would not proceed further in issuing notice under sub-section (1) in respect of taxes so paid or any penalty payable under the provisions of the Act or the Rules. 27) At this stage, it would also be relevant to state that, intimation under sub-section 5 would strictly be in FORM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the learned Government Pleader would contend that, since the word used there is "may", and as the Order impugned came to be passed after the amendment, it is not mandatory to issue GST DRC-01A and that the Officer can proceed directly under Section 73(1), meaning thereby, the procedure contemplated under Section 73(5) has to be dispensed with. 33) Sri. G. Narendra Chetty, learned Counsel appearing for the Petitioner, would contend that the argument of the learned Government Pleader would hold good provided corresponding amendments are made in Section 73(5) of CGST Act, 2017, and in the absence of the same, he would contend that the procedure followed is contrary to the Act. 34) The situation that boils down is, whether intimation under Sub-section (5) of Section 73 and sub-section (5) of Section 74, by issuing notice in FORM GST DRC-01A should be followed? 35) In the instant case, as seen from the record, authorization to inspect and search in Form GST INS01 is dated 20.11.2019, and the business premises was searched on 27.11.2019 by the first Respondent. Notice for production of records was issued on 27.11.2019 and the same were submitted by the Petitioner on 21.01.2020. 36) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to file documentary evidence in support of the objections raised in DRC-01 B, dated 02.11.2021. 42) Having regard to the above and since the notice came to be issued much prior to amendment to Rule 142 (1A), the mandate that was required to be followed has been followed. Hence, the argument of the learned Counsel for the Petitioner that the procedure contemplated under the Act was not followed falls to ground. 43) The next issue raised by the learned Counsel for the Petitioner is, whether one single Assessment Order can be passed for IGST, CGST and SGST, and whether the very same Officer can pass the Assessment Order for IGST also? 44) In order to answer the jurisdiction of the authorities to pass the Assessment Order under IGST, Section 4 of the IGST Act, would solve the issue. It would be appropriate to extract the same, which is as under: "4. Authorisation of officers of State tax or Union territory tax as proper officer in certain circumstances. Without prejudice to the provisions of this Act, the officers appointed under the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act are authorised to be the proper officers for the purposes of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State of Telangana in terms of Section 8 of the Act and there was no movement of goods, leave alone any activity in the State of Andhra Pradesh. The first Respondent could not have assessed the case of the Petitioner, even assuming for the sake of argument that he has authority to do so. But, the Order impugned shows that, the taxable person is doing civil works, contract services to State Government of A.P. and also with the Government of Telangana and Karnataka, apart from effecting sub-contract works to prospective Works Contract service providers. 50) The Assessing Authority perused the income tax returns, balance sheet and profit and loss accounts, coupled with E-way bills etc., to come to a conclusion that the Petitioner was liable to be taxed in the State of Andhra Pradesh as well. 51) This issue, in our view, namely as to whether the turnovers falls outside the purview of Section 7 of the IGST and, as such, no tax under Section 5 of IGST can be levied by the first Respondent herein is a factual aspect, for which, this Court under Article 226 of the Constitution of India, cannot embark on investigating the same, more so, when a remedy of Appeal is available to the Peti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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