Arcon Project PVT LTD vs. The Commissioner CT And GST

The facts adumbrated in the writ petition reveals that the petitioner was issued with show-cause notice vide ASMT-10 for the tax periods from April, 2022 to March, 2023 intimating short payment of tax as the figures disclosed in GSTR-3B and GSTR-1

Subsequent thereto a notice dated 18th August, 2024 came to be served contemplating adjudication process under Section 73 of the GST Act for the tax periods from April, 2022 to March, 2023 pursuant to which the order dated 31st December, 2024 was passed. While contemplating to file appeal against said adjudication order, the petitioner could come to know about outstanding dues with respect to the month of March, 2023, which was purported to have been determined under Section 62 of the GST Act. It is explained that since the works contract was not completed by the end of March, 2023, such figures were not disclosed in the return for the said month, but the same were reflected in the return for the month of August, 2023. This fact has been explained in course of adjudication process under Section 73 and the same has been accepted by the statutory authority while concluding the adjudication under said provision. Therefore, the petitioner challenged the sustainability of the order passed under Section 62 for one month, i.e., March, 2023, for it has direct impact on the demand raised under Section 73 of the GST Act, which comprised the tax periods from April, 2022 to March, 2023. 4. Learned counsel appearing for the petitioner submitted that the figures alleged to have not been reflected in the return of March, 2023 being disclosed in the return for the month of August, 2023 after execution of contract. Therefore, she vehemently submitted that ex parte order passed under Section 62 of the GST Act (which relates to non-filers) for one month, i.e., March, 2023 cannot be sustained as the returns furnished for the tax periods from April,

It is submitted that an assessee cannot be vexed twice for the same turnover. As the adjudication process under Section 73 for the period April, 2022 to March, 2023 engulfed the period of adjudication in Section 62, the order dated 04.07.2023 cannot have its independent existence inasmuch as at one and the same time, two orders cannot made to operate involving overlapping period.

Learned Standing Counsel appearing for the Department- opposite parties vehemently opposed the contentions raised by the learned counsel for the petitioner and submitted that the order under Section 62 and the order under Section 73 of the GST Act are operating in two different fields. Therefore, both the orders are justified. He submitted that since order under Section 62 of the GST Act was not challenged in appeal, this writ Court ought to be loathe to entertain this writ petition.

Heard learned counsel appearing for the petitioner and learned Standing Counsel appearing for the Department-opposite parties.

Perused the averments made in the writ petition and submissions made by the learned counsel for the parties. This Court finds that there is no dispute that order dated 4th July, 2023 passed under Section 62 of the GST Act was passed before furnishing returns and the same was framed for a particular month, i.e., March, 2023. On perusal of adjudication order dated 31st December, 2024 passed under Section 73 of the GST Act, it reveals that order has been passed taking into facts and figures of March, 2023, and adjudicated upon identical issue which was for adjudication under Section 62, i.e., mismatch of figures furnished in GSTR-3B vis-à- vis GSTR-1 that which is subject matter of challenge before the appellate authority. It is manifest from the perusal of the order dated 31st December, 2024 passed in GST DRC-07 passed under Section 73 of the GST Act pertaining to the period from April, 2022 to March, 2023 appears to have taken into consideration the returns filed for the said period. Therefore, this Court is of the view that the order passed under Section 62 of the GST Act with the overlapping period (larger period being considered while passing order under Section 73) cannot withstand judicial scrutiny and it is also not objected to by the learned Standing Counsel that issue considered in the proceedings under Section 73 for April, 2022 to March, 2023 and Section 62 for March, 2023 (only) is identical. This was considered while framing order under Section 73 of the GST Act.

In such view of the matter, this Court quashed and set aside the order dated 4th July, 2023 framed under Section 62 by the State Tax Officer, Assessment Unit, Rambha, Ganjam-II Circle, Ganjam, Odisha-opposite party no.2. 9. Accordingly, the writ petition stands disposed of. Pending interlocutory application(s), if any, is also disposed of.