Shri D. Murali Mohan Patanaik VS Secretary to Government of Odisha, Finance Department

In the present petition, the Petitioner challenges two key notices: one issued on 19th February 2022 by the Deputy Commissioner of CT and GST and an intimation dated 31st March 2022. The first notice requires the Petitioner to produce documents related to stock retention and vehicles used in generating e-way bills for inward and outward supplies. The intimation pertains to the tax assessed as payable under Section 73 (5) of the Odisha Goods and Service Tax Act (OGST Act), including liabilities under the Central Goods and Service Tax Act (CGST Act) for three distinct periods: October 2018 to March 2019, April 2019 to February 2020, and April 2020 to March 2021.

The Petitioner seeks two primary reliefs from the court. First, they request that the Opposite Parties (likely the tax authorities) be directed to refund the tax. Second, they ask for permission to file an appeal against the orders listed in the ‘Annexure-1’ series through the official portal.

The background of the case reveals that the Petitioner is a registered dealer engaged in the distribution of “Grasim Cement” in the Koraput District. This status as a registered dealer underlines their compliance with the GST registration requirements, which necessitates adherence to specific tax obligations and procedures.

The challenge to the notice issued by the Deputy Commissioner of CT and GST likely stems from the Petitioner’s contention that the demand for documents related to stock retention and vehicle usage for e-way bills may be either overly burdensome or not entirely justified. The subsequent intimation dated 31st March 2022 indicates that the tax authorities have determined a certain amount of tax payable under Section 73 (5) of the OGST Act, which deals with the determination of tax not paid or short-paid.

This section typically addresses situations where the tax authorities believe that there has been an underpayment of taxes, and it involves a detailed examination of the taxpayer’s records and returns. The periods under scrutiny—October 2018 to March 2019, April 2019 to February 2020, and April 2020 to March 2021—suggest a comprehensive review over multiple financial years.

The Petitioner’s request for a refund of tax suggests they may believe they have been wrongly assessed or have overpaid. Furthermore, the request to appeal through the portal indicates a procedural or administrative issue, possibly reflecting difficulties in accessing or using the GST portal for filing appeals.

In summary, the Petitioner is disputing the notices requiring document production and tax payments assessed for several periods, seeking both a refund and the ability to appeal the decisions through the designated portal. The case underscores the complexities of compliance and disputes within the GST framework, highlighting the procedural and substantive challenges faced by taxpayers in the system.

the payment was made that the Petitioner sent a letter to the Department, specifically on 6th July 2022, disowning the tax and interest payment. This letter, while referencing the Case Proceeding Reference No. AD2109210041210 and the Intimation ID ZD210322020836W, explicitly stated that the liability of tax payable as ascertained under sections 73(5) and 74(5) was not acceptable to the Petitioner. However, this communication did not indicate that the initial payment was made under protest.

The authorities had detained four vehicles loaded with ‘Grasim Cement,’ requesting the necessary documentation for verification. Although the Petitioner claimed in paragraph 6 of the petition that the payment of the demanded tax was made “under protest” to secure the release of the detained vehicles, the Court found no evidence of such a protest at the time of payment. The only relevant document presented was the aforementioned letter from 6th July 2022, which sought to disown the payment but did not mention any prior protest.

Furthermore, under Rule 142 (1A) and (2A) of the OGST Rules, individuals against whom a tax demand is raised have the option to make a partial payment and submit any objections to the proposed liability in Part-B of Form-GST DRC-01A. The Petitioner, however, chose not to follow this procedure. Instead, he paid the full amount of the tax demanded by the Department without any immediate protest. The Petitioner’s failure to utilize the prescribed procedure and the delay in disowning the payment complicated his claim that the payment was made under duress or protest.

In conclusion, the Court noted that the Petitioner did not demonstrate any protest at the time of payment, nor did he follow the proper channels available for disputing the tax liability. The later letter disowning the payment was insufficient to substantiate the claim of having paid under protest, and the procedural lapse on the Petitioner’s part was evident.

In a case involving the petitioner and the detention of four vehicles loaded with ‘Grasim Cement’ by authorities, the petitioner claims in paragraph 6 of the petition that they paid the demanded tax “under protest” to secure the release of the detained vehicles. However, the court notes that no documentation of this protest was provided at the time of payment. Instead, a letter dated 6th July 2022 from the petitioner to the Department disowning the payment of tax and interest was shown to the court. The letter referenced Case Proceeding Reference No. AD2109210041210 and stated that the petitioner did not accept the liability and provided submissions regarding the remaining liability.

The court observes that the letter does not explicitly state that the earlier payment was made under protest. Furthermore, under Rule 142 (1A) and (2A) of the OGST Rules, a person against whom a tax demand is raised can make a partial payment and file submissions against the proposed liability using Part-B of Form-GST DRC-01A. The petitioner did not follow this procedure but instead made the full payment of the demanded tax without any protest.

The court also points out that the petitioner sent a vague letter three months after making the payment, stating that the liability was “not acceptable.” This delayed communication does not equate to a contemporaneous protest. The petitioner’s actions have therefore prevented him from availing the remedy available in law for contesting the tax demand. Since there is no evidence to support the claim that the payment was made under protest, the court is not convinced by the petitioner’s submission.

As a result, the court concludes that none of the reliefs sought by the petitioner can be granted, and the writ petition is dismissed.

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Shri D. Murali Mohan Patanaik

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