section 74 (1) without issuing
Case Title | Nanhey Mal Munna Ltd vs State of UP & Others. |
Court | Allahabad High Court |
Honorable Judges | Justice Surya Prakash Kesarwani & Justice Jayant Banerji |
Citation | 2022 (3) GSTPanacea 290 HC Allahabad Writ Tax No 287 of 2022 |
Judgement Date | 08-March-2022 |
Council for Petitioner | Aditya Pandey |
Council for Respondent | CSC., A.S.G.I. |
Section | Section 74(1) |
In Favour of | Put up as a fresh case before the appropriate bench |
section 74 (1) without issuing
The Allahabad High Court bench of Justice Surya Prakash Kesarwani & Justice Jayant Banerji has held that Section 74(1) read with Rule 142(1A) intends to afford an opportunity to the dealer/ assessee on a pre-show cause notice stage which shall ultimately benefit both, i.e the assessee and the department, and shall also reduce litigation. This also indicates to follow the principles of natural justice at a pre-show cause notice stage.
section 74 (1) without issuing
FACTS OF THE CASE
Learned counsel for the petitioner submits that before issuing the impugned notice dated 20.01.2022 under Section 74(1) of the CGST/UPGST Act, 2017 in Form GST DRC 01, the statement as required under Rule 142 (1A) was not submitted by the proper officer to the petitioner. Therefore, on account of non compliance of the provision of Rule 142 (1A), the impugned notice deserves to be quashed.
Learned counsel for the petitioner submits that even if input tax credit is blocked invoking the provisions of Rules 86A of the Rules, yet a negative Input Tax Credit cannot be shown otherwise it would amount to stopping the dealer from filing his return and depositing tax therewith.
section 74 (1) without issuing
COURT HELD
Considering the facts as recorded, held that intimation in Form GST DRC-01A provides an opportunity to the dealer to resolve the dispute by depositing or in case of disagreement to face the adjudication proceedings under the Act.
Thus, prima facie, it appears that Section 74(1) read with Rule 142(1A) intends to afford an opportunity to the dealer/ assessee on a pre-show cause notice stage which shall ultimately benefit both, i.e the assessee and the department, and shall also reduce litigation. This also indicates to follow the principles of natural justice at a pre-show cause notice stage.
Accordingly order to put up as a fresh case before the appropriate bench.
Respondents shall file a Gazette copy of the notification dated 15.10.2020. Respondents shall also explain as to how a negative credit can be shown in the Electronic Ledger Account, while blocking Input Tax Credit.
section 74 (1) without issuing
ANALYSIS OF THE JUDGEMENT
Prima facie, perusal of Form GST DRC-01A under rule 142(1A) of the Rules indicates that it is a pre-show cause notice intimation with reference to Section 73(1)/(5) or Section 74(1)/(5) to an assessee so that either he may deposit the amount of tax and interest or he may disagree to the ascertainment resulting in show cause notice under Section 73(1) or Section 74(1), as the case may be.
As an interim measure, it is provided that the petitioner is permitted to file his return along with proof of deposit of tax for the relevant tax period for which return is being filed.
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