SCN can’t be issued by Deputy Commissioner when Form GST DRC-01A was already issued by Asst. Commissioner: HC

Case Details: SSB Petro Products v. Assistant Commissioner, State Tax - [2023] 150 taxmann.com 381 (Calcutta)

Judiciary and Counsel Details

• • T. S. Sivagnanam, ACJ. & Hiranmay Bhattacharyya, J.
  • Himangshu Kr. Ray & Nitish Bhandary for the Appellant.
  • A. Ray, Ld. G.P. T.M. Siddiqui, D. Ghosh & D. Sahu for the Respondent.

Facts of the Case

The appellant was served with an intimation of the tax ascertained as being payable under Sections 73(5) and 74(5) of the CGST Act, 2017. In the said intimation issued in Form GST DRC-01A, the grounds and quantification were mentioned and the appellant was advised to pay the tax ascertained along with the amount of applicable interest and penalty failing which show cause notice will be issued.

The appellant had filed reply to the show cause notice and the matter was not adjudicated further and kept pending. Thereafter, the Joint Commissioner issued Form GST DRC-01 which was uploaded on portal and it came to know of the same only after the sum of Rs. 1,84,930/- was paid from their electronic credit ledger and immediately thereafter, the appellant applied for a copy of the order and preferred the appeal but by then the period of limitation for filing the appeal had expired and appeal was rejected.

It filed writ petition challenging the rejection of appeal but the petition was dismissed and it was held that order was perfectly legal and valid as the appeal was hopelessly time barred and the authority had no power to condone the delay in filing the appeal. It filed intra-court appeal to challenge the order.

High Court Held

The Honorable High Court noted that the Deputy Commissioner could not have initiated proceedings by issuing summary of show cause notice in Form GST DRC-01 and passed order thereon when Assistant Commissioner had already initiated proceedings in respect of very same amount and allegations by issuing intimation in Form GST DRC-01. The Court also noted that reply was filed by appellant but the same was not considered and matter was kept pending as it was not taken to the logical end.

Moreover, the proceedings therein were dropped subsequently during pendency of appeal. Therefore, it was held that the appeal could not be treated as time barred and order dismissing appeal as time barred was quashed with direction to pass fresh order on merits.

List of Cases Reviewed

• • SSB Petro Products & Ors. v. Assistant Commissioner, State Tax, Shibpur Charge – Order, dated 16-1-2023 by Calcutta High Court in WPA No. 29 of 2023 (paras 1 and 4) reversed.