The Delhi High Court set aside the order passed under Section 73 of the Central Goods and Service Tax Act, 2017 ( CGST Act ) even though there was mentioning of input tax credit ( ITC ) in wrong column.
The Petitioner impugned the order dated 05.12.2023, whereby an order under Section 73 of this Central Goods and Services Tax Act, 2017 has been passed and demand is created against the petitioner. It was noticed that a Show Cause Notice was issued to the petitioner which was replied by the petitioner later.
The case of the petitioner is that on account of an error, details of Impugned Tax Credit were inadvertently mentioned in column IV (A) (3) instead of column IV (A) (5).
The impugned order recorded that no proper reply has been submitted and the reply stated to be improper was not found to be satisfactory. The Court noted that the order is cryptic order without any reasons and without taking into account the reply filed by the petitioner.
Section 73 of the CGST Act states that the determination of tax not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilized for any reason other than fraud or any willful-misstatement or suppression of facts.
A Division Bench of Justices Sanjeev Sachdeva and Ravinder Dudeja observed that “None of the averments of the petitioner have been taken into account while passing the impugned order dated 05.12.2023. Accordingly, we are of the view that said order cannot be sustained and the matter calls for a remit.”
“In view of the above, the impugned order dated 05.12.2023 is set aside. The matter is remitted to the proper officer to pass a fresh speaking order taking into account the reply filed by the petitioner. An opportunity of personal hearing shall also be granted to the petitioner. It is clarified that this Court has neither considered, nor commented upon the merits of the contention of either party. All rights and contentions of the parties are reserved” the Court noted.
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