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TMI Blog2024 (10) TMI 790X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that in the present case, there is self-ascertainment. For the purpose of self-ascertainment, it is clear that it amounts to a voluntary determination by the assessee himself as regards the liability of tax. In light of the stand taken in the Affidavit dated 10.08.2021 and the averments made in the writ petition filed on 16.09.2021, this element of voluntariness is absent and accordingly, the sine qua non of self-ascertainment is not fulfilled. Though the declaration in Form DRC-03 contains a declaration that the filing is voluntary, the facts as noticed above are sufficient to construe that such declaration was in fact not voluntary. In light of adjudication still to conclude and notice under Section 74 (1) of the CGST Act is already issued, the question of going back to the stage of 74 (5) does not arise, as in terms of Section 74 (5), the self-ascertainment process is to be completed prior to the issuance of notice under Section 74 (1), subject to issuance of notice under Section 74 (7) as regards shortfall. The petition is allowed in part and while declaring that the recovery of tax made from the petitioner which though Revenue contends is deposit made by way of self-ascert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny goods from M/s. Raj Chemicals. It was the further case of the respondents that an analysis of the e-way bills would reveal that the vehicles had not moved as evidenced by the RFID/fastag data. It is stated that based on the said admission in the statement of Sri Vijay Kumar Gupta as well as analysis of e-way bills, investigation was initiated. The show cause notice eventually came to be issued on 30.11.2022. It is further submitted that during the course of investigation prior to issuance of show cause notice, forcible recovery has been made and it was sought to pass it off as voluntary payments as per procedure prescribed. The details of payments made are as follows:- 1. DRC No. DC2707210844665 dated 31.07.2021 for Rs. 1,00,00,000/-. 2. DRC No. DC2708210031767 dated 03.08.2021 for Rs. 1,50,00,000/-. 4. It is the contention of the petitioner that the amounts were paid under duress and forcibly and the factual matrix and the manner of payment narrated by the petitioner in the list of dates and events produced before this Court is extracted hereinbelow:- Sl.No. Date Time Event Exhibit 1 29.07.21 Bengaluru DGGI visit Rasik Kunj, Ground Floor, Mathuradas Road, Kandivali Mumbai 40006 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... health and he is exhausted, and he requested that he be allowed to attend after a few days. Which initially the officers agreed but constantly called the Petitioner on 2nd August 21 and directed him to come on 3rd August 21. B-Page 65 10 31.07.21 12.30 p.m As soon as possible, despite going through 2 days of mental and physical trauma, under the constant calls from the officer under their directions 1 crore paid through RTGS at the Bank. All through the Investigation the petitioner had no access to any legal consultation. Page 63 11 03.08.21 Petitioner attends the summons and was kept on waiting till late afternoon. Whilst all phones and contact details of the Petitioner was unavailable him him (sic) since 30-07-21 due to seizure by the Authorities, these officers directly spoke to the Debtors of the Petitioner, the Respondent made them deposit the payment in the Petitioner's account. Subsequently after confirming the payment, the Petitioner's seized phones were returns and it was informed to him to make payment of 1.5 crores by e-challan since they would now be able to access the OTP on phone, whilst they were before the Inv Authorities in Bengaluru (details para 46 onwar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tablished and that recovery made during investigation was in violation of legal mandate contained in Article 265 of the Constitution of India. 9. It is also the contention of the petitioner that the supplies from M/s. Raj Chemicals have been long standing transactions and such supply is evidenced by e-way bills, issue of invoices and proof of transport. 10. It is the further contention of the petitioner that the show cause notice does not exclude payment of Rs. 2.50 crores which also strengthens the assertion that the amount paid was not towards self-ascertainment. 11. The respondents have filed their statement of objections to the effect that the petitioner seeks to interfere with the investigation which is being lawfully pursued. It is asserted that information of evasion of tax was gathered by the officers of DGGI while conducting investigation in respect of M/s. Raj Chemicals. The Department submits that they have placed reliance on the statements of Sri. Vijay Kumar Gupta which would indicate the role of the petitioner in tax evasion constituting receipt of invoices without actual supply of goods. 12. It is asserted that the statements of Sri. Priyesh Shashikant Nanavati, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, blatant use of authority and mental torture . 18. Affidavit is dated 10.08.2021 and relates to two statements stated to have been made on 31.07.2021 and 03.08.2021, which can be stated to be proximate in time so as to construe the retraction as being made within reasonable time of recording of statements and accordingly are required to be taken note of. It is also of significance to notice that the writ petition itself was filed on 16.09.2021, all within a span of approximately about 45 days and taking note of the explanation of inaction in the interregnum time, the time lag between completion of investigation and recording of last of the statements on 03.08.2021, swearing to the Affidavit on 10.08.2021 and filing of the writ petition itself on 16.08.20221, if all taken together it cannot be stated that the delay in taking action has defeated the right of the petitioner to assert that the statements recorded were under duress. Even otherwise, the substantive right of the petitioner to contest the recovery which according to the petitioner was under duress cannot be defeated on mere ground of delay in taking action, while noting that the substantive adjudication by way of show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration that the filing is voluntary, the facts as noticed above are sufficient to construe that such declaration was in fact not voluntary. 25. It is also to be noted that, if the Authority was of the view that petitioner had made payments as a part of the process of self-ascertainment under Section 74 (5) of the CGST Act, the scheme of Section 74 contemplates that proceedings would terminate either on acceptance of self-ascertainment or if the Authorities were of the view that the self-ascertainment and the amount paid under Section 74 (5) would fall short of the amount actually payable, the Authority could in terms of Section 74 (7) proceed to issue a notice as provided for under Section 74 (1) in respect of such amount which falls short of the amount actually payable. In the present case, the show cause notice issued dated 30.11.2022 would clearly indicate that the notice sought to be issued under Section 74 (1) would indicate a fresh and complete adjudication and is not a notice as regards short fall of actual tax required to be paid as contemplated under Section 74 (7) and accordingly, the State itself is estopped from contending that there was self-ascertainment. 26. A perusa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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