M/S Eppel Tone Engineers Private Limited vs. State Of U.P. And Another
Original PDF →Facts
The petitioner, M/s Eppel Tone Engineers Private Limited, is aggrieved by a notice of intimation of tax payable under Section 74(5) of the GST Act, 2017, dated 04.04.2025, issued by the Deputy Commissioner, Commercial Tax. Previously, a show cause notice under Section 74 was issued on 23.07.2021, leading to an order dated 29.07.2021. An appeal against this order was decided on 14.02.2023. The petitioner then filed Writ Tax No. 106 of 2024, which a learned Single Judge quashed and set aside the previous orders, directing a de novo assessment within three months. When no hearing was scheduled, the petitioner claimed and received a refund of pre-deposited amounts. Subsequently, on 04.04.2025, the impugned notice under Section 74(5) was issued, prompting the present writ petition.
Held
The Court held that the notice of intimation of tax payable under Section 74(5) of the GST Act, 2017, is not barred by limitation. The learned Single Judge's direction to complete the assessment process within three months was aimed at expediting the proceedings and did not create a separate period of limitation. The relevant provision for issuing an order pursuant to a court's direction is Section 75(3) of the Act, which allows for a period of two years from the date of communication of the direction. Since this period had not expired, the proceedings could continue. The Court also noted that the original show cause notice was not quashed, and therefore, there was no necessity to issue a fresh intimation under Section 74(5). The challenge to the notice and the continuation of proceedings was found to be without substance. The Deputy Commissioner was directed to comply with the learned Single Judge's earlier directions regarding granting an opportunity of hearing and passing a reasoned order.
Key Issues
1. Whether the notice of intimation of tax payable under Section 74(5) of the GST Act, 2017, dated 04.04.2025, is barred by limitation under Section 74(10) of the Act, considering the previous proceedings and the learned Single Judge's order dated 06.02.2024. Petitioner's arguments: The notice is barred by limitation under Section 74(10) as the three-month period stipulated by the learned Single Judge for completing the assessment process had expired on 05.05.2024. Respondent's arguments: The learned Single Judge's direction to complete the process within three months was intended to expedite proceedings and cannot override the statutory limitation period of two years provided under Section 75(3) of the Act for issuing orders pursuant to a court's direction. Furthermore, there was no necessity to issue a fresh intimation under Section 74(5) as the original show cause notice was not quashed and the petitioner had already filed a reply.
Sections Cited
Section 74, Section 74(5), Section 74(10), Section 75(3)
AI-generated summary — verify with the full judgment below
Neutral Citation No. - 2025:AHC:82238-DB Chief Justice's Court Case :- WRIT TAX No. - 2333 of 2025 Petitioner :- M/s Eppel Tone Engineers Private Limited Respondent :- State of U.P. and Another Counsel for Petitioner :- Pranjal Shukla, Ananya Shukla Counsel for Respondent :- C.S.C., Ankur Agarwal (S.C.) Hon'ble Arun Bhansali,Chief Justice Hon'ble Kshitij Shailendra,J.
This writ petition has been filed by the petitioner aggrieved of the notice of intimation of tax ascertained as being payable under Section 74(5) of the Goods and Services Tax Act, 2017 ('the Act') dated 04.04.2025 issued by the Deputy Commissioner, Commercial Tax, Sector 2, Gautam Buddha Nagar (Annexure No. 12 to the writ petition).
The petitioner was issued a show cause notice under Section 74 of the Act dated 23.07.2021, to which a reply was filed by the petitioner and same culminated in order dated 29.07.2021. Aggrieved of the same, the petitioner filed appeal.
The appeal, filed by the petitioner, came to be decided by the appellate authority on 14.02.2023. Feeling aggrieved of the orders dated 29.07.2021 and 14.02.2023, the petitioner filed Writ Tax No. 106 of 2024. When the petition came up before a learned Single Judge of this Court, on noticing the submissions made on behalf of the respondents that the order passed by the Authorities were non- speaking and that the matter may be remanded back granting fresh opportunity of hearing and a de novo assessment may be carried out by the concerned authority, passed the following direction:
"
In the light of the above, the impugned orders dated July 29, 2021
and February 14, 2023 are quashed and set aside, with a direction upon the Deputy Commissioner, Commercial Tax, Division-02, Gautam Budh Nagar to grant opportunity of hearing to the petitioner and thereafter pass a reasoned order after taking into account the reply filed by the petitioner. The entire process for passing the order under Section 74 of the Act should be completed within a period of three months from date. Upon completion of the order passed under Section 74 of the Act a copy of the same be handed over to the petitioner within a week, thereafter."
Pursuant to the said direction, apparently, when the respondents did not fix a date for hearing, the petitioner moved a refund claim on 27.08.2024 seeking refund of the amount pre-deposited by him while filing the appeal. The said refund claim was granted on 30.09.2024 by the CGST Authorities. Whereafter it appears that the respondents becoming aware of the requirement to proceed with passing of a fresh assessment order pursuant to the remand order of this Court, on 04.04.2025, issued notice along with intimation of tax under Section 74(5) of the Act. Feeling aggrieved, the present writ petition has been filed.
Learned counsel for the petitioner submitted that the intimation issued under Section 74(5) of the Act is ex-facie barred by limitation in terms of provisions of Section 74(10) of the Act and, therefore, the order impugned deserves to be quashed and set aside. Further submissions were made that the learned Single Judge required that the entire process for passing of the order under Section 74 of the Act be completed within a period of three months from the date of passing of the order by the learned Single Judge and as the said period of three months was over on 05.05.2024, the respondents could not have thereafter taken any steps in this regard.
Learned Standing Counsel made submissions that in the present case, learned Single Judge while setting aside the orders dated 29.07.2021 and 14.02.2023 had required providing opportunity of hearing and the said exercise could be completed within a period
of two years from the date of communication of the said direction in terms of Section 75(3) of the Act and as the period of two years has so far not expired, no challenge can be laid based on the limitation as provided under Section 74(10) of the Act.
Further submissions have been made that the time period granted by the learned Single Judge cannot be read as creating a limitation other than that provided under Section 75(3) of the Act qua the issuance of intimation under Section 74(5) of the Act. Submissions were made that in fact there was no necessity to issue a fresh intimation under Section 74(5) of the Act as the only direction by the learned Single Judge was to provide opportunity of hearing as the reply to show cause notice had already been filed by the petitioner and therefore, the petition deserves dismissal.
We have considered the submissions made by counsel for the parties and have perused the material available on record.
A perusal of the directions issued by the learned Single Judge would reveal that original order passed on 29.07.2021 and appellate order passed on 14.02.2023 were quashed and the Deputy Commissioner was directed to grant an opportunity of hearing and pass a reasoned order by taking into consideration the reply filed by the petitioner. The show cause notice was not quashed by the Court and, therefore, apparently, there was no necessity to issue the fresh intimation under Section 74(5) of the Act.
So far as the submissions made by learned counsel for the petitioner that as the learned Single Judge has required passing of the order within a period of three months and more than a year has passed since the order of the learned Single Judge and therefore, the proceedings being barred by limitation is concerned, the said contention has been noticed for being rejected only. The indication
made by learned Single Judge was only with a view to expedite the proceedings and the same cannot be read as creating a different period of limitation than what is provided under Section 75(3) of the Act. The provisions of Section 75(3) of the Act, inter alia, reads as under :- "75(3). Where any order is required to be issued in pursuance of the direction of the Appellate Authority or Appellate Tribunal or a court, such order shall be issued within two years from the date of communication of the said direction."
A perusal of the above provision reveals that any order which is required to be issued pursuant to the remand, the same shall be issued within a period of two years from the date of communication of the said order.
In view thereof, it cannot be said that the proceedings pursuant to the directions of the learned Single Judge cannot be continued beyond a period of three months.
In view of the above fact and situation, the challenge laid by the petitioner to the notice issued under Section 74(5) of the Act and questioning the continuance of proceedings pursuant to the order passed by learned Single Judge dated 06.02.2024 has no substance.
The petition is, therefore, dismissed.
The respondent - Deputy Commissioner, Commercial Tax, Sector-2, Gautam Buddha Nagar is directed to comply with the directions of learned Single Judge regarding grant of opportunity of hearing to the petitioner and passing of a reasoned order. Order Date :- 17.5.2025 Mukesh Pal/Jyotsana (Kshitij Shailendra, J) (Arun Bhansali, CJ) MUKESH PAL High Court of Judicature at Allahabad
Reproduced from the public record of the Allahabad High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.