GST Demand Order Set Aside for Lack of Proper Service and Opportunity to Respond; Matter Remanded with Condition of 25% Deposit

Issue: Whether a GST demand order is valid when the show cause notices and the order were not properly served on the assessee and the assessee was unaware of the proceedings.

Facts:

The allegation against the assessee was a mismatch between GSTR-8 and GSTR-1 for the assessment year 2019-20.
The assessee claimed that the show cause notices and the demand order were not served by tender or registered post but were uploaded under the “view additional notices” tab on the GST portal.
The assessee stated that they were unaware of the proceedings and unable to participate in the adjudication.
The assessee expressed willingness to pay 25% of the disputed tax and requested a final opportunity to present their objections.

Decision:

The court, following the precedent in K. Balakrishnan, Balu Cables v. O/o. Assistant Commissioner of GST & CE, set aside the impugned order.
The court made the setting aside conditional upon the assessee depositing 25% of the disputed taxes.

Key Takeaways:

This case emphasizes the importance of proper service of show cause notices and demand orders.
Uploading documents on the GST portal alone may not constitute sufficient service, especially if the assessee is unaware of the proceedings.
The principles of natural justice require that assessees are given a fair opportunity to participate in adjudication proceedings.
The court’s decision to set aside the order, subject to a 25% deposit, balances the interests of the revenue and the taxpayer.
This ruling ensures that taxpayers are not unfairly penalized for alleged discrepancies without being given a proper opportunity to defend their claims.

HIGH COURT OF MADRAS

Fazari Multicuisine Restaurant

Assistant Commissioner (ST)

Mohammed Shaffiq, J.

W.P. No.1979 of 2025
W.M.P. Nos.2313 and 2315 of 2025

JANUARY 24, 2025

I. Dinesh and Ms. N. Janani, Advs. for the Petitioner. TNC. Kaushik, Addl. Govt. Pleader for the Respondent.

ORDER

1. The present writ petition is filed challenging the impugned order dated 22.08.2024 relating to the assessment year 2019-20.

2. It is submitted by the learned counsel for the petitioner that the petitioner is registered under the Goods and Services Tax Act, 2017. During the relevant period 2019-20, the petitioner filed its returns and paid the appropriate taxes. On examination of the information furnished by the tax payer in GSTR-3B and GSTR-1, the following discrepancies were noticed:

(i)

Mismatch between GSTR 3B and GSTR 1;

(ii)

Mismatch between GSTR 3B and GSTR 2A;

(iii)

Mismatch between GSTR 7 v. GSTR 3B and GSTR 1

(iv)

Mismatch between GSTR 8 and GSTR 1;

(v)

Mismatch in GSTR 9 verification;

(vi)

Late filing of returns and

(vii)

Non-generation of E-way bills.

2.1. Though the notice contained several proposals, however despite the fact that the petitioner has not filed reply, except the mismatch between GSTR 8 and GSTR 1 all other defects were dropped.

3. It is submitted by the learned counsel for the petitioner that a notice in ASMT-10 was issued on 28.02.2022 and another notice in DRC-01 was issued on 29.05.2024. Further, reminder notices were issued on 23.07.2024, 30.07.2024 and 10.08.2024. However, the petitioner had neither filed its reply nor paid the disputed tax. It is further submitted by the learned counsel for the petitioner that neither the show cause notices nor the impugned order of assessment has been served on the petitioner by tender or sending it by RPAD, instead it had been uploaded under “view additional notices” tab on the GST Portal, thereby, the petitioner was unaware of the initiated proceedings and was thus unable to participate in the adjudication proceedings. It is submitted by the learned counsel for the petitioner that if the petitioner is provided with an opportunity, they would be able to explain the alleged discrepancies.

4. The learned counsel for the petitioner would place reliance upon the recent judgment of this Court in the case of M/s.K.Balakrishnan, Balu Cables v. O/o. the Assistant Commissioner of GST & Central Excise in W.P.(MD)No.11924 of 2024 dated 10.06.2024, to submit that this court has remanded the matter back in similar circumstances subject to payment of 25% of the disputed taxes.

5. It was further submitted that the petitioner is ready and willing to pay 25% of the disputed tax and that they may be granted one final opportunity before the adjudicating authority to put forth their objections to the proposal. It was submitted that pursuant to the impugned order of assessment, recovery proceedings were initiated and bank accounts have been attached and requests that the same may be lifted, to which the learned Additional Government Pleader appearing for the respondent does not have any serious objection.

6. By consent of both parties, the writ petition stands disposed of on the following terms:

(a)

The impugned order dated 22.08.2024 is set aside.

(b)

The petitioner shall deposit 25% of the disputed taxes as admitted by the learned counsel for the petitioner and the respondent, within a period of four weeks from the date of receipt of a copy of this order.

(c)

If any amount has been recovered or paid out of the disputed taxes, including by way of pre-deposit in appeal, the same would be reduced/adjusted, from/towards the 25% of disputed taxes directed to be paid. The assessing authority shall then intimate the balance amount out of 25 % of disputed taxes to be paid, if any, within a period of one week from the date of receipt of a copy of this order. The petitioner shall deposit such remaining sum within a period of three weeks from such intimation.

(d)

The entire exercise of verification of payment, if any, intimation of the balance sums, if any, to be paid for compliance with the direction of payment of 25% of the disputed taxes, after deducting the sums already paid and payment by the petitioner of the balance amount, if any, on intimation in compliance with the above direction shall be completed within a period of four weeks from the date of receipt of copy of this order.

(e)

Failure to comply with the above condition viz., payment of 25% of disputed taxes within the stipulated period i.e., four weeks from the date of receipt of a copy of this order shall result in restoration of the impugned order.

(f)

If there is any recovery by way of attachment of Bank account or garnishee proceedings, the same shall be lifted /withdrawn on complying with the above condition viz., payment of 25 % of the disputed taxes.

(g)

On complying with the above condition, the impugned order of assessment shall be treated as show cause notice and the petitioner shall submit its objections within a period of four (4) weeks from the date of receipt of a copy of this order along with supporting documents/material. If any such objections are filed, the same shall be considered by the respondent and orders shall be passed in accordance with law after affording a reasonable opportunity of hearing to the petitioner. It is made clear that if the above conditions viz., 25% of disputed taxes is not complied or objections are not filed within the stipulated period, four weeks respectively from the date of receipt of a copy of this order, the impugned order of assessment shall stand restored.

7. There shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.