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TMI Blog2023 (2) TMI 723X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Respondents to allow the refund claimed by the Petitioners along with interest. c) Ad-interim order in terms of above prayer; d) Costs of and incidental to this application be paid by the Respondents; e) Such further or other order or orders be made and/or directions be given as would afford complete relief to your petitioner; AND/OR f) For issuance of any other relief(s) as the Petitioner may be found entitled to, in law; g) And your Petitioner, as in duty bound, shall ever pray; 2. The brief facts of the case is that the petitioner is a public limited company engaged in the business of providing interalia goods transportation agency (GTA) services under reverse charge mechanism (RCM) bearing GSTIN 20AAACD2086J2ZZ in State of Jharkhand. The petitioner is registered for the same services vide another registration in the State bearing GSTIN 20AAACD2086J1Z0, but under forward charge mechanism (FCM). The requirement of two registrations stemmed out of the commercial necessity of business, wherein certain customers of the Petitioner were willing to discharge the liability under RCM; whereas others were not so willing. Under the first registration, the liability to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r contends that the formal notice in FORM GST- RFD-08 under Rule 92(3) for rejection of application for refund was not intimated to him, but it is the contention of the department that it was duly uploaded on his portal which is accessible through a login and password by the assessee. Be that as it may, the notice in Form GST-RFD-08 dated 17th May, 2021 in its body did not disclose any reasons for inadmissibility of refund from the dropped down of the amount of Rs.1,70,12,325/- as would appear from the relevant part of the Form GST-RFD-08 extracted hereunder: "This has reference to your above mentioned application for refund application is liable to be rejected on account of the following reasons: Sr. No Description (select the reasons of inadmissibility of refund from the drop down) Amount Inadmissible 1 Other 17012325 You are hereby called upon to show cause as to why your refund claim, to the extent of the amount specified above, should not be rejected for reasons stated above." Petitioner furnished his reply to the allegation of mismatch in the outward tax supplies in GSTR-3B returns compared to GSTR-1 at Annexure-8 filed on 20th May, 2021. Petitioner was not granted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicant had taken benefit of ITC of Rs. 4,57,27,369/- in excess during the period as discussed therein above due to reason that he has taken two GST registrations in the same State under same PAN one GSTIN for FCM @ 12 % with ITC and another GSTIN for RCM @ 5 % without ITC. This according to the AO was a suppression of facts resulting in heavy loss to the Government revenue due to twice GSTIN by taking excess ITC of Rs.4,57,27,369/- from GSTIN: 20AAACD2086J1Z0. Petitioner was accordingly advised to reverse the excess ITC with interest suo motu before any adverse action is taken against him. However, in view of the aforesaid facts since the applicant had not paid the aforesaid amount in terms of Section 49(1) of the CGST Act, 2017 and had not maintained 'Electronic Cash Ledger' in terms of Sub section (6) of Section 49, the AO held that he had failed to fulfill the laid down conditions under Section 54(1) of the CGST Act read with Rule 89 (1) of the CGST Rules, 2017 as such his application for refund an amount of Rs.1,70,12,325/- in respect of GSTIN No. 20AAACD2086J2ZZ was rejected by the order in original which has been affirmed by the appellate authority. 8. Learned counsel for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eply to the show cause notice and that is why the adjudicating authority proceeded to determine the liability taking into account both the GSTINs which are not permissible in law. (iii) The entire plea raised by the petitioner herein was taken into consideration by the appellate authority which refused to interfere with the order in original as the act of the petitioner in having two GSTINs in the same place of business, in the same nature of business under the same PAN number and maintain to the same Bank account was not proper in the eye of law and rather in the teeth of the amended proviso to Section 25(2) of the CGST Act, 2017. Therefore, order in original and the impugned appellate order does not suffer from any infirmity. However, learned counsel for the respondent has not been able to dispute the contention of the petitioner that the show cause notice at page 144 did not make any allegation of contravention of Section 25 (2) proviso to the CGST Act against the petitioner as regards having two GSTIN numbers within the same place of business and in respect of the same nature of business. His reply is that the department was unaware of the two GSTIN registrations of the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v) On combining the turnover and ITC availed by both the units paying tax under FCM and RCM, it is observed that the petitioner has taken ITC in excess of Rs.4,57,27,369 by virtue of obtaining two registrations, which has resulted in revenue loss. From the finding as enumerated hereinabove, it clearly transpires that regarding none of the grounds on which the OIO has been passed there is any allegation made in the show cause notice. It is settled principle of law that if an allegation or ground is not made at the time of issuance of show cause notice, the authority cannot go beyond the scope of show cause notice to create new ground at the later stage of adjudication. 12. It further transpires that the impugned proceedings are also vitiated for violation of principles of natural justice as neither a proper show cause notice has been issued nor any opportunity of hearing was given to the petitioner. It is also now well settled that before adjudicating any issue which is against the interest of assessee; opportunity of hearing should be granted to him. In the instant case, had there been any opportunity given to the petitioner, the respondents might have proceeded to issue a subseq ..... X X X X Extracts X X X X X X X X Extracts X X X X
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