Om Sakthi Construction VS Assistant Commissioner

Dr. A. Thiyagarajan, representing the writ petitioner, along with Mr. D. Senthil Kumar, counsel on record, and Mr. V. Sundareswaran, senior panel counsel (GST) for the respondent, appeared before the Court. This order is a continuation of earlier proceedings from January 4, 2023. Dr. Thiyagarajan, supported by Mr. Senthil Kumar, highlighted that the case pertains to the Tamil Nadu Goods and Services Act, 2017 (Act 19 of 2017). The discussion focused on a notice dated August 30, 2022, identified as DIN-20220859XS0000222CD3, which is contested in the petition.

Dr. A. Thiyagarajan, representing the writ petitioner, and Mr. V. Sundareswaran, representing the lone respondent, appeared before the Court. This order follows from previous proceedings on 04.01.2023. Dr. A. Thiyagarajan highlighted that the case pertains to the Tamil Nadu Goods and Services Act, 2017 (TN-G & ST Act). The dispute revolves around three notices: the first dated 30.08.2022 (referred to as ‘I impugned notice’), the second dated 23.11.2022 (‘II impugned notice’), and the third dated 22.12.2022 (‘III impugned notice’). These notices informed the writ petitioner about an audit of their books and records from July 2017 to March 2020 under Section 65 of the TN-G & ST Act. In response to ‘I impugned notice’, the writ petitioner cited an ongoing proceeding related to a ‘Show Cause Notice’ dated 18.10.2022 (‘said SCN’). Despite this, ‘II impugned notice’ and ‘III impugned notice’ reiterated the intent to proceed with the Section 65 audit. Following ‘I impugned notice’, the writ petitioner responded with a letter dated 10.09.2022. Subsequently, the ‘said SCN’ under Section 74 of the Central Goods and Services Tax Act read with Rule 142(2) of the Central Goods and Services Tax Rules was issued.

In the present writ petition, Dr. A. Thiyagarajan, representing the writ petitioner, and Mr. V. Sundareswaran, representing the lone respondent as senior counsels, appeared before the Court. This order is a continuation of proceedings from January 4, 2023.

Dr. Thiyagarajan, instructed by Mr. D. Senthil Kumar, highlighted that the case pertains to the Tamil Nadu Goods and Services Tax Act, 2017 (TN-GST Act). He contested three notices issued: the first on August 30, 2022 (referred to as ‘I impugned notice’), indicating an audit from July 2017 to March 2020; the second and third notices followed despite the petitioner’s response to the first. He argued that simultaneous proceedings under Section 65 for audit and Section 74 for a show cause notice (SCN) cannot legally proceed, citing precedent from the Calcutta High Court’s decision in R.P. Buildcon Private Limited & Anr. vs. The Superintendent & 10 Ors.

Mr. Sundareswaran, representing the respondent, acknowledged receipt of the petition and sought time to consult and respond. The Court directed the registry to include the Revenue counsel’s name for the next hearing and scheduled the matter for the Admission Board on January 6, 2023.

In the writ petition before the court, Dr. A. Thiyagarajan, representing the petitioner, and Mr. V. Sundareswaran, for the respondent, appeared. This hearing builds upon prior proceedings dated January 4, 2023, where Dr. A. Thiyagarajan and Mr. D. Senthilkumar were present for the petitioner, discussing issues under the Tamil Nadu Goods and Services Act, 2017 (TN-G & ST Act).

The current matter revolves around notices issued to the petitioner, notably a first notice dated August 30, 2022 (I impugned notice), indicating an audit of the petitioner’s records from July 2017 to March 2020 under Section 65 of the TN-G & ST Act. Despite the petitioner’s response citing ongoing proceedings from a Show Cause Notice dated October 18, 2022 (said SCN), subsequent notices (II and III impugned notices) reiterated the intention to proceed with the audit.

Dr. Thiyagarajan argues that simultaneous audits under Section 65 and proceedings from Section 74 of the CGST Act, as evidenced by the said SCN, are legally untenable. He references a precedent from the Calcutta High Court (R.P. Buildcon case), where a similar issue was addressed, albeit in reverse procedural circumstances.

Mr. Sundareswaran, representing the respondent, acknowledged receipt of the petition and requested time for instructions. The court directed the registry to include the name of the revenue counsel for future hearings and scheduled the matter for the Admission Board in early January 2023.

A correction was noted regarding the date of the petitioner’s reply in earlier proceedings, clarifying it as November 22, 2022, not September 10, 2022, as previously stated. The respondent’s counsel countered Dr. Thiyagarajan’s reliance on the R.P. Buildcon case, arguing its distinction from the present case based on procedural details and legal principles discussed in paragraph 10.

Dr. Thiyagarajan further cited two additional legal precedents, namely S.M. Overseas Pvt. Ltd. vs. Commissioner of Income Tax and Sonam Berlia vs. State of Odisha, supporting his arguments, which will likely shape future proceedings in this matter.

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