Tax Management India. Com
Law and Practice  :  Digital eBook
Research is most exciting & rewarding
  TMI - Tax Management India. Com
Follow us:
  Facebook   Twitter   Linkedin   Telegram

TMI Blog

Home

2023 (12) TMI 291

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... in FORM GST DRC-04. Thus, the procedure under Rule 142 of Delhi Goods Services Tax Rules, 2017 (the DGST Rules) has not been followed. In the present case, the petitioner has stoutly disputed that the reversal of ITC was voluntary. Undisputedly, the same has been made while the petitioner s premises were being searched and he was being subjected to questioning / enquiries - it is not difficult to accept that the petitioner may have found the circumstances intimidating and had, accordingly, agreed to reverse the ITC. The respondents are directed to reverse the ITC amounting to ₹22,14,226/- in the petitioner s ECL - petition disposed off. - HON BLE MR JUSTICE VIBHU BAKHRU AND HON BLE MR JUSTICE AMIT MAHAJAN Advocates who appeared in this case: For the Petitioner : Mr. A. K. Babbar Mr. Surender Kumar, Advs. For the Respondents : Mr. Rajeev Aggarwal, SC with Ms. Shilpa Singh, Adv. JUDGMENT VIBHU BAKHRU, J 1. The petitioner has filed the present petition principally challenging the search / inspection conducted at his business premises situated at 3460/1, Jai Mata Market, Tri Nagar, Delhi- 110039 and Godown at E-285, Sector-4, Bawana, Delhi-110039 on 18.10.2022 under Section 67 .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... tock of goods in hand, has claimed ITC in excess of his entitlement under the Act has claimed refund in excess of his entitlement under the Act has indulged in contravention of the provisions of this Act or rules made thereunder to evade tax under this Act; OR B. M/s.__________________________________________ is engaged in the business of transporting goods that have escaped payment of tax is an owner or operator of a warehouse or a godown or a place where goods that have escaped payment of tax have been stored has kept accounts or goods in such a manner as is likely to cause evasion of tax payable under this Act. OR C. goods liable to confiscation / documents relevant to the proceedings under the Act are secreted in the business/residential premises detailed herein below Details of the Premises Therefore, in exercise of the powers conferred upon me under subsection (1) of section 67 of the Act, I authorize and require you to inspect the premises belonging to the above mentioned person with such assistance as may be necessary for inspection of goods or documents and/or any other things relevant to the proceedings under the said Act and rules made thereunder. OR in exercise of the p .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... C amounting to ₹2,39,40,871/- on account of purchases made from suppliers whose registrations were cancelled. In view of the above, we find no merit in the contention that the search conducted was illegal and was without any reasons to believe that the conditions under Section 67(1)(a) of the DGST Act were satisfied. 10. The second question to be examined is, whether the petitioner is entitled to the refund of ITC deposited during the course of the search conducted on 18.10.2022. According to the petitioner, he was compelled to deposit a sum of ₹22,14,226/- by reversing the ITC available in his Electronic Credit Ledger (hereafter the ECL ). The petitioner also claims that the statement to that effect as recorded on 18.10.2022, was also recorded under duress and coercion. 11. Mr. Rajiv Aggarwal, learned counsel appearing for the respondents countered the aforesaid submission on, essentially, two grounds. First, he submitted that the petitioner had not retracted the statement recorded on 18.10.2022, immediately after the search and therefore, he is precluded from disputing that he had voluntarily reversed the ITC amounting to ₹22,14,226/-. Mr. Aggarwal referred to t .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... ed on self-ascertainment basis. In the event that a taxpayer voluntary pays the tax and the applicable interest, no notice is required to be issued under Section 73(1) of the DGST Act. If it is found that the tax paid falls short of the tax payable, the proper officer is required to issue a notice for the shortfall under Section 73(7) of the DGST Act. 16. Sub-sections (5), (6) and (7) of Section 73 of the CGST Act are set out below: 73. Determination of tax not paid or short paid or erroneously refunded or ITC wrongly availed or utilised for any reason other than fraud or any willful-misstatement or suppression of facts. xxx xxx xxx (5) The person chargeable with tax may, before service of notice under subsection (1) or, as the case may be, the statement under sub-section (3), pay the amount of tax along with interest payable thereon under section 50 on the basis of his own ascertainment of such tax or the tax as ascertained by the proper officer and inform the proper officer in writing of such payment. (6) The proper officer, on receipt of such information, shall not serve any notice under sub-section (1) or, as the case may be, the statement under sub-section (3), in respect of t .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... is no acknowledgment that the invoices covering supplies from those suppliers were fake and the petitioner had not paid the consideration and the applicable GST to the said suppliers. There is no adjudication of the question whether the taxpayer was required to reverse the ITC in respect of purchases made from dealers whose registration was cancelled after the receipt of supplies, albeit retrospectively. 21. Mr. Aggarwal further submitted that there was no requirement for adjudicating the liability as the petitioner had reversed the ITC. However, in RCI Industries and Technologies Ltd. though its Director Rajiv Gupta v. Commissioner, DGST Delhi Ors. (supra), this Court had not finally rejected the petitioner s claim that the statement was made under coercion as the Court had noted that the payment of tax would be adjudicated and that the correctness of the statement would be required to be established in the adjudication proceedings. In the present case, the tax deposited by the petitioner by reversal of ITC is not subject to any adjudication proceedings. As noted above, Mr. Aggarwal had contended that no adjudication in respect of the demand is necessary. This is also the Scheme o .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

 

 

 

 

Quick Updates:Latest Updates