M/S Rajkamal Builder ... vs Union Of India
2021 Latest Caselaw 4585 Guj

         C/SCA/21534/2019                                       JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 21534 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE J.B.PARDIWALA

and
HONOURABLE MR. JUSTICE ILESH J. VORA

==========================================================

1     Whether Reporters of Local Papers may be allowed to see
      the judgment ?                                                        YES

2     To be referred to the Reporter or not ?
                                                                            YES
3     Whether their Lordships wish to see the fair copy of the
      judgment ?                                                             NO

4     Whether this case involves a substantial question of law as to
      the interpretation of the Constitution of India or any order
                                                                             NO
      made thereunder ?


==========================================================
      M/S RAJKAMAL BUILDER INFRASTRUCTURE PRIVATE LIMITED
              THROUGH DIRECTOR MAHENDRA H PATEL
                              Versus
                         UNION OF INDIA
==========================================================
Appearance:
MR.AVINASH PODDAR(9761) for the Petitioner(s) No. 1
MR TRUPESH KATHIRIYA, AGP(1) for the Respondent(s) No. 3,4
MR ANKIT SHAH(6371) for the Respondent(s) No. 1
MR UTKARSH R SHARMA(6157) for the Respondent(s) No. 2,5
==========================================================

    CORAM: HONOURABLE MR. JUSTICE J.B.PARDIWALA
           and
           HONOURABLE MR. JUSTICE ILESH J. VORA

                               Date : 23/03/2021



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        C/SCA/21534/2019                                             JUDGMENT



                               ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)

1 By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs:

"a) to issue writ of or in the nature of a mandamus or any other appropriate writ, order or direction holding the Form GST DRC 01 issued to the petitioner as without authority of law and liable to be quashed.

b) To issue writ of or in the nature of a mandamus or any other appropriate writ, order or direction holding the interest on delayed payment of tax to be charged on gross liability is ultra vires and de hors to section 50 of the CGST Act, CGST Act and / or ultra vires to the constitution of India.

c) Pending admission, hearing and till final disposal of this petition, Your Lordships may be pleased to direct the respondent.

(i) From resorting to any coercive measure against the petitioner.

(ii) To stay the proceedings of Form GST DRC 01.

d) To issue order/s, direction/s, writ/s or any other relief/s as this Honourable Court deems fit and proper in the facts and circumstances of the case and in the interest of justice.

e) To award costs of and incidental to this application be paid by the respondent."

2 A Coordinate Bench of this Court passed the following order dated 5th December 2019 at the time of issuance of the notice:

C/SCA/21534/2019 JUDGMENT

"1. The learned advocate for the petitioner has tendered draft amendment. The amendment is allowed in terms of the draft. The same shall be carried out forthwith.

2. Mr. Avinash Poddar, learned advocate for the petitioner, invited the attention of the court to the impugned show cause notice dated 19.07.2019 issued in Form GST DRC 01 under Rule 142(1) of the Central Goods and Service Tax Rules, 2017 (hereinafter referred to as "the Rules") to point out that the notice has been issued in relation to section 50 of the Central Goods and Service Tax Act, 2017 (hereinafter referred to as "the Act"). Reference was made to rule 142 of the Rules to point out that the same no where contemplates issuance of notice thereunder in respect of section 50 of the Act. It was submitted that therefore, the impugned show cause notice has been issued without any authority of law.

3. Having regard to the submissions advanced by the learned advocate for the petitioner, issue Notice, returnable on 26.12.2019. By way of ad­ interim relief, further proceedings pursuant to the impugned notice dated 19.07.2019 (Annexure­D to the petition) are hereby stayed.

Direct service is permitted."

3 We have heard Dr. Avinash Poddar, the learned counsel appearing for the writ applicant, Mr. Utkarsh Sharma, the learned Standing Counsel appearing for the Union of India and Mr. Trupesh Kathiriya, the learned A.G.P. appearing for the State respondent.

4 Two questions fall for the consideration of this Court:

[i] Whether interest under Section 50 of the Central Goods and Service Tax Act, 2017 (for short, "the CGST Act, 2017") is to be levied on the net tax liability or on the gross tax liability?

[ii] Whether issuance of DRC 01 under Section 50 of the CGST Act, 2017 is legal and proper?

        C/SCA/21534/2019                                          JUDGMENT




5     The following amendment has been proposed in Section 50 of the

CGST Act, 2017 vide clause 103 of the Finance Bill, 2021.

"103. In section 50 of the Central Goods and Services Tax Act, in sub­ section (1), for the proviso, the following proviso shall be substituted and shall be deemed to have been substituted with effect from the 1st day of July, 2017, namely:­

"Provided that the interest on tax payable in respect of supplies made during a tax period and declared in the return for the said period furnished after the due date in accordance with the provisions of Section 39, except where such return is furnished after commencement of any proceedings under Section 73 or Section 74 in respect of the said period, shall be payable on that portion of the tax which is paid by debiting the electronic cash ledger."

6 Thus, from the above, it is clear that the interest under Section 50 of the CGST Act, 2017 can only be levied on the net tax liability and not on the gross tax liability. In such circumstances, the demand raised by the respondent is not in accordance with law.

7 So far as the second question is concerned, it appears that the respondent No.3 has issued Form GST DRC 01 under Section 50 of the CGST Act, 2017. Section 50 of the CGST Act, 2017 reads thus:

"50. Interest on delayed payment of tax. ­ (1) Every person who is liable to pay tax in accordance with the provisions of this Act or the rules made thereunder, but fails to pay the tax or any part thereof to the Government within the period prescribed, shall for the period for which the tax or any part thereof remains unpaid, pay, on his own, interest at such rate, not exceeding eighteen per cent., as may be notified by the Government on the recommendations of the Council.

C/SCA/21534/2019 JUDGMENT

Provided that the interest on tax payable in respect of supplies made during a tax period and declared in the return for the said period furnished after the due date in accordance with the provisions of section 39, except where such return is furnished after commencement of any proceedings under section 73 or section 74 in respect of the said period, shall be levied on that portion of the tax that is paid by debiting the electronic cash ledger.

(2) The interest under sub­section (1) shall be calculated, in such manner as may be prescribed, from the day succeeding the day on which such tax was due to be paid.

(3) A taxable person who makes an undue or excess claim of input tax credit under sub­section (10) of section 42 or undue or excess reduction in output tax liability under sub­section (10) of section 43, shall pay interest on such undue or excess claim or on such undue or excess reduction, as the case may be, at such rate not exceeding twenty­four per cent., as may be notified by the Government on the recommendations of the Council."

8 Rule 142(1)(a) of the Central Goods and Service Tax Rules, 2017 (for short, "the CGST Rules, 2017") reads thus:

"142. Notice and order for demand of amounts payable under the Act. ­ (1) The proper officer shall serve, along with the ­

(a) notice issued under section 52 or section 73 or section 74 or section 76 or section 122 or section 123 or section 124 or section 125 or section 127 or section 129 or section 130, a summary thereof electronically in FORM GST DRC­01."

9 Thus, the plain reading of the aforesaid rules indicates that Form GST DRC 01 can be served by the proper officer along with the notice issued under Section 52 or Section 73 or Section 74 or Section 76 or Section 122 or Section 123 or Section 124 or Section 125 or Section 127 or Section 129 or Section 130 and that too, electronically as a summary of notice.

10    We do not find reference of any notice under Section 50 so far as






         C/SCA/21534/2019                                        JUDGMENT

Rule 142(1)(a) of the CGST Rules is concerned. In such circumstances, DRC 01 could not have been issued for the purpose of recovery of the amount towards interest on delayed payment of tax.

11 The aforesaid leads us to consider the question that if the amount towards interest on delayed payment of tax is to be recovered, then what is the Form in which the notice is to be issued?

12 In the aforesaid context, we may refer to Section 75(12) of the Act. It reads thus:

"75. General provisions relating to determination of tax.

... ...

(12) Notwithstanding anything contained in section 73 or section 74, where any amount of self­assessed tax in accordance with a return furnished under section 39 remains unpaid, either wholly or partly, or any amount of interest payable on such tax remains unpaid, the same shall be recovered under the provisions of section 79."

13 Thus, the aforesaid provisions make it abundantly clear that notwithstanding anything contained in section 73 or Section 74, if there is any amount of interest payable on tax and which had remained unpaid, the same has to be recovered under the provisions of Section 79.

14 Section 79 is with respect to recovery of tax. Section 79 provides for the modes of recovery.

15 We shall now look into Rule 142 of the CGST Rules. Rule 142(5) reads as under:

"142. Notice and order for demand of amounts payable under the Act.

         C/SCA/21534/2019                                           JUDGMENT




       ...      ...

(5) A summary of the order issued under section 52 or section 62 or section 63 or section 64 or section 73 or section 74 or section 75 or section 76 or section 122 or section 123 or section 124 or section 125 or section 127 or section 129 or section 130 shall be uploaded electronically in FORM GST DRC­07, specifying therein the amount of tax, interest and penalty payable by the person chargeable with tax."

16 Rule 142 makes it clear that the order referred in sub­rule (5) shall be treated as the notice for recovery.

17 From the aforesaid, we have reached to the conclusion that the notice should have been issued in Form GST DRC 07. The Notice should specify the amount of tax, interest and penalty payable by the person chargeable with tax.

18 In view of the aforesaid, the Form GST DRC 01 could be said to have been issued without any authority of law.

19 In the result, this writ application succeeds and is hereby allowed. The impugned order issued in GST DRC 01 is hereby ordered to be quashed and set aside. We reserve the liberty for the respondents to initiate fresh proceedings against the writ applicant in accordance with law.

20 With the above, this writ application stands disposed of.

(J. B. PARDIWALA, J)

(ILESH J. VORA,J) CHANDRESH