Madras High Court
Tvl.Ags Mall vs Commercial Tax Officer on 27 January, 2025
Author: Mohammed Shaffiq
Bench: Mohammed Shaffiq
W.P.No.1957 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :27.01.2025
CORAM
THE HONOURABLE MR.JUSTICE MOHAMMED SHAFFIQ
W.P. No.1957 of 2025
and
W.M.P.Nos.2285 and 2288 of 2025
Tvl.AGS Mall
Represented by its partner: Mr.A.Gnanasekar
3/33 AGS Mall Shopping Complex,
Chinnakulam, Mariamman Koil Street,
Thirupattur 635 601. ... Petitioner
Vs.
Commercial Tax Officer,
Jurisdiction: Thirupattur,
Thirupattur: Vellore: Tamil Nadu,
Thirupattur – Tamil Nadu ... Respondent
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus and call for the records on
the file of the respondent passed in order u/s 73 passed in
GSTIN:33AAUFA0984D1ZG and Form GST DRC-07 having Reference
No.ZD3303240992198 and dated 16.03.2024 for the tax period April 2018-
March 2019 relating to Financial Year 2018-19 and quash the same as illegal
contrary to the provisions of the TNGST/CGST Acts and in violation of
principles of natural justice and fair play and direct the respondent to reverse
the suo moto debiting of the Electronic Credit Ledger of the petitioner.
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1/8
W.P.No.1957 of 2025
For Petitioner : Mr.T.Pramod Kumar Chopda,
Senior Advocate for
Mr.T.C.Gopalakrishnan
For Respondent : Mr.C.Harsha Raj,
Additional Government Pleader.
ORDER
The present writ petition is filed challenging the impugned order passed
by the respondent dated 16.03.2024 relating to the assessment year 2018-19.
2. The petitioner is engaged in the business of providing boarding and
lodging services and is registered under the Goods and Services Tax Act,
2017. During the relevant period viz., 2018-19, the petitioner filed its returns
and paid the appropriate taxes. On scrutiny of the petitioner's return, the
following discrepancies were noticed viz.,
i. Under Declaration of Output Tax
ii. Excess Claim of Input Tax Credit.
2.1.Pursuant thereto, a notice in DRC-01 was issued on 27.12.2023.
However, the petitioner had failed to file its reply, hence, the impugned order
came to be passed, confirming the proposal.
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3. The impugned order is challenged on the premise 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
in the GST Portal, thereby, the petitioner was unaware of the initiated
proceedings and was thus unable to participate in the adjudication
proceedings.
4. It is submitted by the learned counsel for the petitioner that
subsequent to the impugned order dated 16.03.2024, an intimation in DRC-
01A was issued, raising certain other issues related to GSTR-2A and GSTR-
3B. However, the entire proceedings came to be dropped including one of the
issues which forms the subject matter of the impugned order dated
16.03.2024 viz., mismatch between GSTR-3B and GSTR-2A. As a result, it is
submitted that the demand pursuant to the order dated 16.03.2024 would
correspondingly be reduced. If that is taken into account, taxes that have been
recovered would constitute more than 25% of the disputed taxes.
5. 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. The learned counsel for the petitioner would then place
https://www.mhc.tn.gov.in/judis
reliance upon the recent judgment of this Court in the case of
M/s.K.Balakrishnan, Balu Cables vs. 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. It was further submitted that
subsequent to the passing of the impugned order, the petitioner had remitted
more than 25% of the disputed taxes and that they may be granted one final
opportunity before the adjudicating authority to put forth their objections to
the proposal, 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 16.03.2024 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
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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
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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.
27.01.2025
Speaking (or) Non Speaking Order
Index : Yes/ No
Neutral Citation: Yes/No
shk
https://www.mhc.tn.gov.in/judis
To:
Commercial Tax Officer,
Jurisdiction: Thirupattur,
Thirupattur: Vellore: Tamil Nadu,
Thirupattur – Tamil Nadu
https://www.mhc.tn.gov.in/judis
MOHAMMED SHAFFIQ, J.
shk
and
W.M.P.Nos.2285 and 2288 of 2025
27.01.2025
(1/2)
https://www.mhc.tn.gov.in/judis
