Manoj Kumar Moharana vs. Joint Commnr. Of State Tax, Cuttack

This matter is taken up through hybrid arrangement.

Heard learned counsel for the petitioner and learned counsel for the State.

The petitioner has filed this writ petition seeking direction from this Court to quash the order dated 29.03.2023 passed by the opposite party No.1/learned 1st Appellate Authority by confirming the order for demand by the opposite party No.2/Additional CT & GST Officer against a dead person for the period from April 2019 to March,2020. 4. Learned counsel for the petitioner submits that the petitioner is the legal heir of deceased Prahallad Moharana. M/s.Prahallad Moharana is a Proprietorship concern engaged in providing Works Contract Service as a Super Class Contractor having PWD Contractors Registration Certificate No.234 of 2010-11 declaring principal place of business at Maitri Vihar Maitri Lane, Odisha registered under the VAT Act, bearing TIN 21871201059 with effect from 17.03.2004. But, unfortunately, Prahallad Moharana expired on 15.04.2017. Hence, the VAT registration in his name did not migrate to GST Act. In addition to the above, Prahallad Moharana, his wife Mrs. Sailabala Moharana and son Manoj Kumar Moharana, the petitioner by constituting a Partnership Firm in the name and style of M/s. Prahallad Moharana and partners with effect from 05.04.2016 was also engaged in providing Works Contract Service. After the death of Prahallad Moharana other two partners continued the business by reconstituting the partnership firm with effect from 18.07.2017 as a Super Class Contractor having PWD Contractors Registration Certificate No.534 of 2017-18. The principal place of business was at Maitri Vihar, Maitri Lane, Odisha 753012 registered under the GST Act bearing GSTIN 21AASFP4687N1ZF.

The opposite party No.2/Additional CT & GST Officer, Cuttack-1 Circle, Cuttack issued a notice on 15.03.2022 to the third person under Section 79 of the Act in Form GST DRC- 13 for recovery of alleged demand in the name of the dead person. The petitioner came to know that the opposite party No.2 by creating a temporary GSTIN 212100002431TEMP in the name of deceased Prahallad Moharana raised demand of Rs.25,12,686/- for the period of 2019-2020 which was never communicated to the petitioner. After creating temporary registration immediately initiated a proceeding under Section 63 of the OGST Act in Form GST ASMT 14 and Form GST DRC 01 dated 09.07.2021 relying on WAMIS data with the allegations that the Works Contractor has failed to obtain registration and discharge the tax liability and other liabilities which is amount to Rs.87,24,802/- reflected in WAMIS. As the same was not communicated to the petitioner, the petitioner could not submit the reply to the said show cause notice. It is further contended that the appeal under Section 107(11) of the OGST Act, 2017 has also been dismissed confirming the tax, interest and penalty liability of Rs.25,12,686/- both under CGST and SGST Act.

He further submits that as per settled principle of law the concept of reasonable opportunity includes various safeguards and one of them is to afford opportunity to the person to deny his guilt and establish his innocence. But, in the instant case not a single opportunity has been granted to the petitioner. Hence, he is constrained to approach this Court with the aforesaid grievance.

Mr. Digant Das, learned Additional Standing Counsel for the State submits that though the Proprietor/Assessee named Prahallad Moharana died on 15.04.2017, the petitioner along with another continued to operate the Firm registered in the name of M/s Prahallad Moharana. Hence, the liability fixed on the petitioner by the department is not illegal. Further, it is contended that the Registration Certificate of the dealer is not valid after death of the proprietor as reported. However, the legal heir has received the payment but has not paid tax. Further, he does not dispute the Assessee’s death certificate dated 15th April, 2017. 8. Considering the submissions and averments made, we dispose of the Writ Petition by setting aside the order dated 29.03.2023 under Annexure-1 passed by the opposite party No.

The writ petition is disposed of in the above terms.

Issue urgent certified copy of this order as per Rules.