9911796707
TMI Blog2024 (6) TMI 1258X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be completed cannot be at any stage of imagination to be treated to be a voluntary payment. Furthermore, it is an admitted case that the department has not issued any receipt under GST DRC-04. The order passed in the writ petition is set aside and there will be a direction to the respondents/GST authorities to return the sum of Rs. 30,00,000/- to the appellants within a period of six weeks from the date of receipt of server copy of this order. With regard to the claim for interest is concerned, the appellants are at liberty to raise such a plea during the adjudication of the show-cause notice for which, we propose to issue the following directions. Appeal allowed. - HON BLE MR. CHIEF JUSTICE T.S. SIVAGNANAM AND HON BLE MR. JUSTICE HIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be paid by them during the course of search. 5. The other aspect, which has been alleged is the validity of such search itself, which has been questioned by the appellants by filing an affidavit-in-reply to the affidavit-in-opposition filed by the respondent nos. 1 to 5. 6. The appellants in the affidavit-in-reply have enclosed two affidavits shown by one, Tarun Bera and Ashim Kumar Modi, wherein they have alleged that the signatures found in the INS-01 in respect of the premises at Howrah Amta Road, Madhya Santoshpur, Howrah, West Bengal is not the signature of Mr. Bera. In our view, this issue cannot be adjudicated in a writ petition based on affidavits, more particularly, when the affidavit, which has been filed on behalf of the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis of ascertainment of their liability on non4 payment/short payment of tax before or at any stage of such proceedings. The tax officer should however, inform the taxpayers regarding the provisions of voluntary tax payments through GST DRC-03. 10. Further, the instruction states that Principal Chief Commissioners/Chief Commissioners, CGST Zones and Principal Director General, DGGI are advised that in case, any complaint is received from a taxpayer regarding use of force or coercion by any of their officers for getting the amount deposited during search or inspection or investigation, the same may be inquired at the earliest and in case of any wrongdoing on the part of any tax officer, strict disciplinary action as per law may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T DRC-04 would not arise. 14. This submission is contrary to the statutory rule, which was considered in the case of Shree Ganesh Molasses Trading Co. Vs. Superintendent, Office of the Commissioner reported in [2023] 148 taxmann.com 36 (Gujarat), wherein the Hon ble Court referred to Rule 142 (2) of the CGST Rules, 2017, which stipulates that where any person makes any payment of tax, interest, penalty, whether on his own ascertainment or as communicated by the proper officer under sub-rule (1A), he shall inform the proper officer of such payment in Form GST DRC-03 and the proper officer shall issue an acknowledgement, accepting the payment made by the said person in Form GST DRC-04. Admittedly, in the instant case, Form GST DRC-04 was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efinitely shows that the payment could not have been voluntary. In fact, the fact situation in the case of Shree Ganesh Molasses Trading Co. (supra) as well as in the case of Vallabh Textiles (supra) are more or less identical wherein the Courts noted dates and events and came to the conclusion that the payment of tax by a taxpayer during the course of search could not be have been stated to be voluntarily made. Furthermore, as pointed out earlier, there was no receipt issued in GST DRC 04 by the authority. The appellants on their part at the earliest point of time have submitted a representation on 29th March, 2023 to the Inspector of Central Taxes, Anti Evasion Wing, wherein they have stated that they were forced to make payment of Rs. 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oted that the petitioner therein was a legal person as it is described to be a company registered under the Companies Act, 1956 and that the legal person cannot be physically coerced. Apart from that, the Court also noted in paragraph 7 of the said judgment that the petitioner therein did not even whisper anything of such kind in the several letters addressed to the authorities including in answering the summons to say that such amount was recovered by the department under coercion, much less to raise the same before the appropriate police authorities. Further, the Court held that whether the amount, which was deposited under threat or coercion or whether it was a voluntary deposit, was held to be a disputed question of fact, which cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
