What is Demand of Tax under GST u/s 73 of the GST Act | Including GST Case Laws

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Table of Contents

1. Demand of Tax under Section 73
2. Situations Covered
3. Show Cause Notice Mandatory
4. System Generated Notice without Mention of Specific Provision not Valid
5. Silent Show Cause Notice not Sustainable
6. Monetary Limits for Issuance of SCN and Adjudication
7. Invocation of Writ Jurisdiction at SCN Stage
8. SCN in Violation of Natural Justice – Writ Remedy Available
9. SCN Cannot be Issued to Reagitate Settled Issues
10. SCN Cannot be Issued to Legal Heirs of Deceased when Provision therefore Absent
11. Show Cause Notice must not Pre-Judge the Issue
12. Person to Whom SCN is not Issued cannot be Proceeded Against
13. Mention of Wrong Section May Not be Fatal to SCN
14. Issue not Raised in SCN cannot be Agitated later
15. SCN must be Unambiguous
16. Unsigned SCN – Proceedings Void Ab Initio
17. Orders and Communication from the Department is not SCN
18. Internal Order of Department is not SCN

1. Demand of Tax under Section 73

The general method of determination of liability is self-assessment. Such assessment is based on the understanding and interpretation of the taxpayer. Such understanding may not necessarily coincide with that of the department. Due to such differences, there may be non-payment of tax or short payment of tax. The department cannot unilaterally seek payment of tax without ascertaining reasons for non-payment as short payment. Before fastening tax liability, principles of natural justice should be followed. The first one is audi alteram partem. Section 73 is a complete code in itself insofar as issuance of notice, affording opportunity of hearing and determination of liabilities by way of order are concerned.

The SGST department, Government of Kerala has issued guidelines (File No. CT/1444/2021- C9 dated 22-2-2021) for determination of tax liability by adjudicating authorities under Section 73 and Section 74. As per these guidelines, though issuance of intimation in Form DRC-01A has been made optional by amendment to CGST Rules, by Notification No. 79/2020-Central Tax dated 15-10-2020, the officers have been advised to give pre-notice opportunity to avoid further litigation.

2. Situations Covered

Unlike Section 11A of the Central Excise Act, 1944 which covered non-levy and short-levy also, the analogous provision of Section 73 of CGST Act covers only 4 situations viz., non-payment of tax, short payment of tax, erroneous refund and wrong availment or utilization of input tax credit. The heading of the provision categorically states that it covers only cases not involving fraud or wilful misstatement or suppression of facts. In common parlance, this provision is applicable where normal period of limitation is involved i.e., where the notice demanding tax is issued within the time-limit as provided in Section 73(2) is issued. Because Section 73 excludes cases involving serious charges, it is the default provision invoked in majority of cases of tax demand or for other infractions.

3. Show Cause Notice Mandatory

Sub-section (1) of Section 73 casts the duty on the department to issue show cause notice when it appears that tax has not been paid or short paid or erroneously refunded or Input Tax Credit (ITC) has been wrongly availed or utilized. The statute uses the words “it appears”. This means that the officer issuing SCN need not have all the evidences to conclusively establish non-payment or short-payment of tax. It can be issued based on prima facie evidence and as per material available with the department. However, it shall not be construed as authorizing the department to issue notice on mere suspicion or without any shred of evidence. Though not used in the provision, reasonable belief as to non-payment will be a ground to issue SCN and for such reasonable belief some material should be available on record and the same cannot be substituted with presumption.

Use of “shall” indicates mandatory nature of the provision. If some amount of tax is prescribed as not paid then the law commands the officer to issue a notice. The major or sole objective of notice is to ascertain the reasons for non-payment. Such reasons are elicited in the form of detailing the charge levelled against the taxpayer, the contravention of provisions as alleged and the interrogatives as to why tax not paid or short paid should not be demanded.

4. System Generated Notice without Mention of Specific Provision not Valid

Rule 142(1)(a) provides for uploading of summary of the SCN in the GST portal in Form GST DRC-01 at the time of service of show cause notice and intimation of tax, interest and penalty payable in Part A of Form GST DRC-01A before issue of SCN. Reply is required to be filed in Part B of Form GST DRC-01A. In practice, several show cause notices are system-generated from the portal and therefore, there is no specific reason mentioned for proposal to cancel registration. Most of the times, the reason is mentioned as “Non-compliance of any specified provisions in the GST Act or the Rules.” In a case of this nature, the Tripura High Court quashed the SCN as being vague and imprecise and held that granting hearing would be an empty formality when specific provision of the statute and the manner of violation have not been mentioned in the SCN – Dayamay Enterprise v. State of Tripura [2021] 128 taxmann.com 49 (Tripura).

5. Silent Show Cause Notice not Sustainable

Show cause notice was issued proposing to reject refund application and the reason mentioned was “Other” based on selection in the drop-down menu. Because of Covid-19 pandemic, lockdown was announced and reply could not be filed by the taxpayer. Order was passed later without assigning any reason. Appeal was filed but the appellate authority rejected the same on the ground that reply to SCN was not filed and documents were not submitted to justify the refund claim. The High Court observed that no prudent man could have given reply to the kind of silent show cause notice served on the petitioner. The authority was directed to pass fresh order – Sahibabad Printers v. Additional Commissioner (Appeals) [2021] 124 taxmann.com 371/84 GST 601 (All.).

6. Monetary Limits for Issuance of SCN and Adjudication

CBIC has, vide Circular No. 31/05/2018 – GST dated 9-2-2018 fixed monetary limits for issuance of show cause notices and adjudication of the same under Sections 73 and 74 of the CGST Act and Section 20 of the IGST Act (read with Sections 73 and 74 of the CGST Act).

As per the above circular, CGST officers of Audit Commissionerates and Directorate General of Goods and Services Tax Intelligence (DGGSTI) shall exercise the powers only to issue show cause notices. Show cause notice issued by them shall be adjudicated by the competent CGST officer of the Executive Commissionerate in whose jurisdiction the noticee is registered.

Further, in cases where show cause notices have been issued on similar issues to a noticee and made answerable to different levels of adjudicating authorities within a Commissionerate, such show cause notices should be adjudicated by the adjudicating authority competent to decide the case involving the highest amount of CGST and/or IGST (including cess).

7. Invocation of Writ Jurisdiction at SCN Stage

Issue of notice is not the stage or an indicator that the department has pre-judged the issues. In Karnataka Power Transmission Corpn. Ltd. v. PR. Commr. of C. Ex., Bengaluru 2019 (366) E.L.T. 716 (Kar.) the High Court indicated its displeasure in waste of public time in dealing with a frivolous and pre-mature petition challenging constitutional validity of definition clause and seeking quashing of SCN. It stated that the assessee was unnecessarily encroaching upon the precious public time of the Constitutional Courts without allowing the competent adjudicating authorities or appellate authorities to apply their mind to the contentions raised by the assessee and then pass appropriate orders in the matter. The assessee ought to reply to the SCN, proceed through hierarchy of remedial measures and forums provided by the enactment.

8. SCN in Violation of Natural Justice – Writ Remedy Available

It is settled law that if SCN has been issued without jurisdiction or in violation of principles of natural justice, then the same can be challenged invoking writ jurisdiction of High Court. The J&K High Court in Navneet R. Jhanwar v. State Tax Officer [2021] 127 taxmann.com 137/47 GSTL 337 (J&K) held that despite the mandate of Rule 92(3) of CGST Rules on providing hearing before rejection of refund claim and the requirement to comply with principles of natural justice, no notice was given to the petitioner to explain as to why his claim may not be rejected on merits. It held that the unilateral decision taken and conveying such rejection of the claim, were not sustainable. The counter of the department on existence of alternative remedy of appeal was rejected in view of violation of natural justice. The department was directed to consider the matter afresh.

9. SCN Cannot be Issued to Reagitate Settled Issues

The Supreme Court of India in Union of India v. Vicco Laboratories [2008] 2008 taxmann.com 520/2007 (218) E.L.T. 647 (SC) held that while interference at the stage of issue of SCN would be rare, where the notice is issued without jurisdiction or is an abuse of the process of law, the notice is liable to be quashed. The assessee and the department had been through various rounds of litigation and the product manufactured by the assessee had been held to be ayurvedic and not cosmetic products or patent proprietary medicines. However, the department issued fresh SCN based on leave obtained by it to seek a test to appropriately classify the product. The Supreme Court held that the new SCN was only a repetition of the earlier SCNs and issue pertaining to which had already been decided by the Court. Thus, the fresh SCNs sought to reopen settled issues and constituted an abuse of the process of law. This principle will be applicable under GST if second or subsequent SCNs are issued on the same issue when such issue has already been decided by the court in respect of the first SCN.

10. SCN Cannot be Issued to Legal Heirs of Deceased when Provision therefore Absent

The Supreme Court in Shabina Abraham v. Collector of Central Excise and Customs [2015] 61 taxmann.com 95/ (322) ELT 372 (SC) held that since the there was no provision in the Central Excise Act, 1944 to proceed against the legal heirs, recovery of tax dues could not be made from them. The legal heirs, in the instant case, argued that assessment could not be continued against them and the SCN issued to them was without jurisdiction.

Section 93 of CGST Act provides that if a person liable to pay tax, interest or penalty dies, then his legal representative or any other person through whom the business is continued, will be liable to pay such amounts. If the business is discontinued, then such legal representative shall be liable to settle the dues out of the estate of the deceased. There is no express provision in the CGST Act to recover tax or other statutory dues from legal heirs of the person liable after his death. Applying the ratio of the above judgment, therefore, SCN cannot be issued to legal heirs for GST dues.

11. Show Cause Notice must not Pre-Judge the Issue

The issuance of SCN and providing opportunity of hearing to the assessee is one of the fundamentals to ensure that principles of natural justice are complied with. Therefore, the issuance of SCN must not be an empty formality. An SCN in which bias is apparent will not be a valid SCN. In Oryx Fisheries Private Limited v. Union of India 2011 (266) E.L.T. 422 (SC) the SCN proposing cancellation of registration was challenged by the assessee as vitiated by unfairness and bias since the officer had made up his mind to cancel the registration. Setting aside the order cancelling registration, the Supreme Court opined:

“31. It is of course true that the show cause notice cannot be read hyper-technically and it is well settled that it is to be read reasonably. But one thing is clear that while reading a show-cause notice the person who is subject to it must get an impression that he will get an effective opportunity to rebut the allegations contained in the show cause notice and prove his innocence. If on a reasonable reading of a show-cause notice a person of ordinary prudence gets the feeling that his reply to the show cause notice will be an empty ceremony and he will merely knock his head against the impenetrable wall of prejudged opinion, such a show cause notice does not commence a fair procedure especially when it is issued in a quasi-judicial proceeding under a statutory regulation which promises to give the person proceeded against a reasonable opportunity of defence.

32. Therefore, while issuing a show-cause notice, the authorities must take care to manifestly keep an open mind as they are to act fairly in adjudging the guilt or otherwise of the person proceeded against and specially when he has the power to take a punitive step against the person after giving him a show cause notice.”

The adjudicating authority had passed a non-speaking order without discussing the reply of the assessee and hence it was held that the bias which was latent in the SCN had become patent in the order.

12. Person to Whom SCN is not Issued cannot be Proceeded Against

When SCN is issued, the noticee is bound to reply to the same. Where the department seeks to proceed against many persons, the SCN has to be issued to each separately. A person to whom SCN has not been issued cannot be proceeded against. In Pankaj Gandhi v. Commissioner of Customs, New Delhi 2010 (249) E.L.T. 121 (Tri. – Delhi) the manager of an entity which had bought goods which was subject matter of a valuation dispute urged that natural justice had been denied to him and in absence of SCN, all proceedings against him were vitiated. The Tribunal upheld his contention.

The tax department issued notice to both the Indian service recipient as well as the foreign supplier in Sundaram Textiles Ltd. v. Commissioner of C. Ex., Tirunelveli 2008 (10) S.T.R. 260 (Tri. – Chennai) contending that the foreign company was liable to pay service tax or the buyer should have discharged the same. It was held that tax cannot be demanded “in the style of ‘from A and B as assessee/where A and B are different legal entities” unless one is sought to be made an agent of the other and then such fact must be clearly mentioned in the notice.

The Supreme Court in Collector of Customs, Cochin v. Trivandrum Rubber Works Ltd. [1999] 1999 taxmann.com 1771/(106) E.L.T. 9 (SC) held that notice served on the Customs House Clearing Agent (CHA) of the importer was not valid service and if the department sought to recover the duty from the CHA, it should mention the same. In the instant case, it was held that the department could not recover the dues from the CHA since demand on the importer was time-barred and for default by the department, liability cannot be shifted to a different person.

13. Mention of Wrong Section May Not be Fatal to SCN

While revenue officers are required to exercise due diligence and care in executing their functions as adjudicators and assessment authorities and invoking wrong section would point to non-application of mind and creation of a baseless charge, mere mention of wrong section may not be fatal to the proceedings. In LVR & Dong-In Stone Ltd. v. Collector of Customs, Madras 1994 (72) E.L.T. 377 (Tri. Chennai) the Tribunal held that if the nature of offence has been clearly brought out in the notice, mere mention of wrong section will not vitiate the proceedings. In the instant case, the exporters were aware of the lapses and allowed the goods to be exported without completing the statutory formalities or as alleged, forging signatures. However, in Commissioner of Service Tax, Bangalore v. The Peoples Choice [2014] 46 taxmann.com 22/45 GST 714 (36) S.T.R. (10) (Kar.) it was held that quoting of an obsolete section which was not in force at time of issuance of SCN would vitiate the proceedings.

Where offences were alleged under Customs Act as well as FERA but no section of the Customs Act was quoted, it was held in Fortune Impex v. Commissioner 2002 (139) E.L.T. A177 (SC) that non-mention of the particular section of the Customs Act, 1962 would not vitiate the proceedings, particularly when allegation and charges against all the appellants were mentioned in clear terms in the SCN.

In Commissioner of Central Excise v. Pradyummna Steel 1996 (82) E.L.T. 441 (SC) the Supreme Court held that if the authority has exercised power which is available as per statute, incorrect mention of section alone is not enough to invalidate the notice. The Tribunal had held that the SCN itself was invalid and also refused to allow rectification by the department. However, the department contended successfully that such rectification could be permitted and hence the order of the Tribunal was to be set aside.

However, in Commissioner of C. Ex., Tiruchirappalli v. Super Spinning Mills Ltd. [2015] 62 taxmann.com 47/52 GST 406/(324) E.L.T. 552 (Mad.) it was held that where the tone and tenor of the SCN sought to invoke extended period of limitation mentioning Section 72 but quoted the Section 28 of the Customs Act, 1962 read with Section 72, it was not a case of mere incorrect mention of section. The assessee should be put to notice as regards the charge of the department and as such the SCN was not legally sustainable.

14. Issue not Raised in SCN cannot be Agitated later

The department raised an issue whether the Commissioner as adjudicating authority could examine validity of registration certificate granted to the assessee as Consulting Engineer. However, the Supreme Court in Commissioner of Central Excise v. Tata Tech Ltd.⁸⁵ held that an issue which has not been in the SCN cannot be gone into afresh since SCN forms the basis or foundation for proceedings.

Where the First Appellate Authority remanded the matter to the assessing officer enabling him to issue a fresh notice of penalty though it was held that there had been no charge of violation in the first notice, the Allahabad High Court held in Ecom Express Pvt Ltd. v. The Commissioner Commercial Taxes (Sales/Trade Tax Revision No. 325 of 2018 dated 4-1-2019) that the assessing authority at the first instance has to frame the charge and cannot seek to improve it later.

15. SCN must be Unambiguous

As discussed earlier, by means of SCN the assessee should be put to notice of the charges against him. In United Telecoms Ltd. v. Commissioner of Service Tax, Hyderabad 2011 (22) S.T.R. 571 (Tri. – Bang.) where the SCN alleged that the service was taxable as Business Auxiliary Service and as Business Support Services, it was held that the demand was not sustainable since it was vague.

16. Unsigned SCN – Proceedings Void Ab Initio

Participation by an assessee in the proceedings cannot confer jurisdiction to the authorities. In S.P.S. Steels Rolling Mills Ltd. v. Commissioner of C. Ex., Bolpur 2007 (219) E.L.T. 881 (Tri. – Kol.) the assessee contended that the entire proceedings arose out of an unsigned SCN and had no legal basis. The Tribunal held that preliminary rule of law is that any proceeding to be initiated should be under authority of law and the proceedings based on unsigned SCN were void ab initio.

17. Orders and Communication from the Department is not SCN

In order to recover unpaid or short paid tax and other dues, the issue of SCN as specified in the statute is essential. In Metal Forgings v. Union of India 2002 (146) E.L.T. 241 (SC) the revenue department contended that the orders and letters which contained all necessary details were to be construed as SCN and since only a provisional order had been issued, a separate SCN was not required. The Supreme Court held that the law requires issue of notice under a specific provision and is required to be served within the period of limitation as specified and SCN cannot be part of other communication. As regards the argument of the order being provisional and issue being in dispute during the rounds of litigation from Tribunal to High Court and remand, it was held that so long as there was no specific injunction against issue of SCN, the period cannot be excluded and the authorities ought to have issued SCN.

18. Internal Order of Department is not SCN

The Supreme Court in Commissioner of Central Excise, Haldia v. Krishna Wax (P.) Ltd. [2019] 368 E.L.T. 769 (SC) held that at the stage of issuance of SCN, the department forms a preliminary view and the assessee is entitled to present his case against the same. In the instant case the respondent raised the issue of jurisdiction at the initial stage and then as per direction of High Court the department communicated its internal order carrying the prima facie determination to the assessee who preferred appeal against the same. The Supreme Court held that the assessee had no cause of action against the internal order and ought to avail the remedy of filing reply to the SCN which it did not do.