9911796707
TMI Blog2024 (3) TMI 1316X X X X Extracts X X X X X X X X Extracts X X X X ..... ance of the case, when the Petitioner has raised an issue of the maintainability of the alleged demand on the ground that Section 52 of the CGST Act is not applicable, and more particularly considering the nature of the business and transaction involved, it would be appropriate that the adjudicating officer considers the same as preliminary issues and decide the same first in accordance with law. This Petition is disposed off by permitting the Petitioner to raise such preliminary issues before the adjudicating officer and the same shall be taken into consideration and decided by him in accordance with law. - G. S. KULKARNI FIRDOSH P. POONIWALLA, JJ. For the Petitioner : Mr. V. Sridharan, Sr. Advocate a/w. Mr. Rajesh Oswal, Mr. Shanmuga De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of and/or in adjudication of the impugned Show Cause Notice No. DGGI/MZU/I IS'B'/12(4)16/2020 dated 27.9.2023 (Exhibit A ) issued by the Respondent No. 2; d) for ad-interim reliefs in terms of the prayers above; e) for costs of this Petition; f) for such further and other reliefs as the nature and circumstances of the case may require. 2. The Petitioner is engaged in the business of providing e-auction service which facilitates interface between buyers and sellers of various agricultural and non-agricultural commodities. It hosts e-auction software platform which substantially enables the price discovery of the agricultural commodities. It has been holding GST registration in 23 states of India. It is the case of the Petitioner that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... October 2021, the Petitioner submitted its reply to the summons explaining that the provisions of Section 52 of the CGST Act are not applicable to the Petitioner and hence it was not liable to collect TCS. 4. In support of such contention that Section 52 of the CGST Act is not applicable, legal opinions from experts were obtained and were submitted for consultation of the concerned officer of the department. Such legal opinions, according to the Petitioner, categorically state that Section 52 of the CGST Act was not applicable on exempt supplies. 5. It is the case of the Petitioner that, from 17th March 2022 to 23rd August 2022, the Petitioner had submitted certificates obtained from suppliers stating that applicable GST has already been di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that there is no explicit provision under Section 52 of the CGST Act which provides for recovery under Section 73 or Section 74, when the tax payers fails to deposit TCS unlike Section 51(7) of the CGST Act which provides for recovery of TDS under Section 73 or Section 74. In the absence of machinery production for recovery, the Department cannot recover such amounts. Thus it is contended that the Respondents are not correct in issuing the show cause notice in person as the very provisions of Section 52 of the CGST Act are not applicable to the Petitioner. 9. On the other hand, Mr. Mishra, learned Counsel for the Respondent, has opposed the contentions. Referring to the reply affidavit as filed, he submitted that the Respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opriate order on such preliminary objections before proceeding to adjudicate the show cause notice on the merits. (iii) All contentions of the parties in that regard are expressly kept open. (iv) In the event, if the order that is passed on the preliminary issues is adverse to the Petitioner, all remedies to the Petitioner are expressly kept open. 13. As we are informed that the show cause notice would be required to be adjudicated on or before 30th April 2024, let the Petitioner appear before the adjudicating officer on 1st April 2024. The adjudicating officer shall make an endeavour to pass appropriate orders. 14. All contentions of the parties are expressly kept open. 15. Petition stands disposed of in the aforesaid terms. No costs. - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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