9911796707
TMI Blog2023 (3) TMI 1265X X X X Extracts X X X X X X X X Extracts X X X X ..... rd to a high tax amount plus interest and penalty proposed to be laid and nature of the contention raised by the petitioner, the 3rd respondent ought to have extended some more opportunity to the petitioner for personal hearing. Therefore, without going into the merits of petitioner s case, it is opined that a direction shall be issued to the 3rd respondent to afford a personal hearing to the petitioner and pass Assessment Order afresh in accordance with law on suitable terms. Without reference to the merits of the petitioner s case, the impugned Assessment Order dated 10.11.2022 passed by the 3rd respondent is set aside on the condition of petitioner depositing 50% of tax component of Rs.23,79,26,090/- as mentioned in the impugned order dated 10.11.2022 within six (6) weeks from the date of receipt of a copy of this order and upon such deposit, the 3rd respondent shall fix a date for personal hearing of the petitioner with regard to her objections to the proposed assessment and after hearing the petitioner, pass an appropriate Assessment Order in accordance with the governing law and rules expeditiously. This Writ Petition is disposed of. - The Hon'ble Sri Justice U. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the service charges paid to her and over and above the said service charges, there is no tax liability under APGST Act, 2017. (e) The 3rd respondent issued show cause notice along with the statement of dues in DRC-01 on 23.09.2022, for which the petitioner submitted response dated 22.10.2022 contending that the levy of GST for provision of services may be restricted only to the consideration for the services provided and payments made to the employees outsourced to respondents 4 and 5 towards wages, ESI and EPF shall not form part of taxable turnover. However, the 3rd respondent passed impugned Assessment Order. Hence the writ petition. 3. Briefly the averments in the counter filed by 3rd respondent are thus: (a) Admittedly, the petitioner is engaged in the business of Man power supply services to respondents 4 5 and others. The 3rd respondent passed the Assessment Order dated 10.11.2022 under Section 74 of the APGST Act, 2017 levying tax of Rs.23,79,26,090/-, penalty equal to tax, and interest of Rs.5,36,10,496/- which is being impugned in the present writ petition. The contention of the petitioner that the 3rd respondent levied tax on amounts received by the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liability plus interest and penalty were fixed without any legal foundation is baseless. The Adjudicating Authority issued intimation of tax liability in DRC 01A on 29.07.2022 and show cause notice in DRC 01 was issued on 23.09.2022 fixing personal hearing dates on 02.09.2022 and 06.10.2022. Thus, the Adjudicating Authority has followed due procedure as contemplated under the provisions of the Act and principles of natural justice while finalizing the orders in DRC 07. The vast difference between turnover reported in GSTR 3B and turnover assessed in DRC 07 was due to the turnovers adopted for assessment as per books of accounts maintained by the petitioner and information received from respective departments. The variation in taxable turnovers was tabulated month-wise in DRC 01 itself. Hence, the contention that there was no legal foundation for fixation of the tax liability is not correct. (e) The contention of the petitioner that the wages provided to the employees and statutory payments of EPF and ESI, etc., will not fall within the ambit of the GST is not correct. In the context of the APGST Act, 2017, the petitioner is the service provider and the recipients are the Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice charges collected by the petitioner alone form part of the consideration which is exigeble to GST. He would also argue that since the petitioner is an agent on behalf of respondents 4 and 5, the amounts covered by wages, ESI and EPF were paid by the petitioner as an agent of respondents 4 and 5 and hence those amounts cannot be added to the service charges received by the petitioner. Learned senior counsel would strenuously argue that in the reply dated 22.10.2022 submitted to the show cause notice the petitioner has clearly raised the above objection and contended that the authority has no legal sanctity to assess the petitioner to tax. However, the 3rd respondent without considering the objections of the petitioner in a right perspective and without affording an opportunity of hearing, passed the impugned order. Learned counsel would submit that the petitioner is an old lady aged 75 years and she could not respond immediately through her authorized representative to submit arguments on behalf of the petitioner. Learned counsel thus prayed to set aside the impugned order dated 10.11.2022 and remit the matter to the 3rd respondent to hear the petitioner s objections and pass ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt of notice. It is a further admitted fact that, as against the show cause notice, the petitioner filed her objections dated 22.10.2022 contending that GST is taxable only on the Services to recipients but not on the ESI, EPF and wages etc. In the said objections, the petitioner also mentioned that the earlier letter submitted by her on 19.09.2022 may be treated as withdrawn. Now the grievance of the petitioner is that without considering the objections dated 22.10.2022 and without providing an opportunity of hearing to the petitioner, the 3rd respondent passed the impugned Assessment Order dated 10.11.2022 fixing the tax liability, thereby, the petitioner who is an old aged lady of 75 years lost her valuable opportunity to put forth her case. The respondent denied the aforesaid contention and argued that due opportunity was given to the petitioner and thereafter only the impugned order was passed. 9. In this context, we perused the impugned order dated 10.11.2022, wherein it is mentioned, as against the show cause notice dated 23.09.2022, the petitioner submitted a letter of objection dated 22.10.2022 raising her objection that the tax proposed on the wages, ESI and EPF etc., ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
