During the scrutiny of return furnished by the petitioner for the period April 2018 to Mar 2019 certain discrepancies were notice and GST ASMT -10dated 11^th feb 2021 issued. The petitioner submitted reply in ASMT 11 on 16^th Mar 2021. However an intimation of tax payable under section 73 and 74 of CGST Act, was also issued to petitioner.

The petitioner submitted a reply also that allegation of interpretation of section 16(4) of CGST  and consequent denial of ITC is misconception of law. The notice cannot be denied the ITC on any technical breaches.

The council of petitioner also submits that levy of interest  would start only of adjudication of demand as the notice has disputed the liability, further penalty under section 73 would be attracted only after demand is adjudicated upon proper SCN under section 73 and is not paid within 30 days therefrom. And its the case where no SCN was issued under section 73 after the issuance of intimation under DRC01.

Learned council of petitioner gave the reference of Ms NKAS P Ltd Vs State of Jharkhand 2022 where it is pointed out that the department has further proceeded to issue garnishee notice upon the petitioner’s bank asking it to pay liability in term of section 79 of GST , making it clear that failure to do so shall render the bank to be defaulter and face conse.

Learned counsel for the petitioner has relied upon the judgment of a Coordinate Bench of this Court of which one of us (Deepak Roshan, J) was a Member, Mahadeo Construction Company Vrs. Union of India & Ors.W.P.(T) No.3517 of 2019 dated 21st April, 2020. He submits that this Court has held that in the event the assesse disputes the leviability of interest, no recovery proceeding under Section 79 of the Act can be initiated for recovery of the interest amount without any initiation of any adjudication proceedings

Counter affidavit has been filed by the respondent by opposing the submissions of petitioner. It is inter alia contended that petitioner has not availed statutory remedy of appeal under Section 107 of JGST Act against the adjudication order passed under Section 73(1). It has further been stated that petitioner has not filed information regarding mobile no. and e-mail ID of the Directors and of business. Therefore, REG-17 was issued to the petitioner. He filed self-amendment in registration and still he has not given correct mobile number of business and its representative. It is further contended that Company filed its return for the month of March, 2019 in Form GSTR-3B on 28^th October, 2019 for the Financial Year 2018-19. It was scrutinized by the Department and found that the petitioner’s claim of Input Tax Credit is in

contravention of Section 16(4) of JGST Act.In view of the aforesaid discrepancies in filing of the tax return by 28th October, 2019, whereas it was required to be filed by 20th October, 2019, the Department vide Reference no. 5104 dated 11th February, 2021 issued Form GST ASMT-10 to the petitioner and sought explanation. The petitioner was also directed to reverse the ITC wrongly availed by him after the due date of filing the return. Petitioner submitted his reply on 24th March, 2021 in form GST ASMT-11, which was not satisfactory. Accordingly, Form GST DRC- 01A was issued to the petitioner intimating the liability.