The Gujarat High Court in a recent case dismissed the Writ Petition (WP)since the provision under section 73(9) read with sections 78 and 107 of the Gujarat Goods and Services Tax Act, 2017 is misconceived.
M/S Stallion Energy Private Limited, petitioner No.1 is the company engaged in the business of supply of goods viz. coke and semicoke of coal. It was stated that the respondent issued a show cause notice under Section 73 of the Gujarat Goods and Services Tax Act, 2017 (‘Act’) which culminated in an adjudication order.
It was further stated that the adjudication order came to be passed on 02.03.2022. As per the said order, the petitioner was directed to make the payment of the total amount of Rs.56,14,388/-. It was also stated that thereafter order of provisional attachment of the property under Section 83 of the Act came to be passed on 16.06.2022. Out of the total amount of Rs.56,14,388, RS. 46 lakhs came to be withdrawn by the respondents from the bank account of the petitioner maintained with HDFC Bank.
It was also stated that as per the provisions contained in Section 107 of the Act, the petitioner is required to pre-deposit 10% of the amount of tax before the Appellate Authority. However, the respondents withdrew an amount of Rs.46 lakh from the account of the petitioner maintained with HDFC Bank. The petitioner has, therefore, urged in the WP that the respondents be directed to refund the remaining amount i.e. Rs.42,44,664/-.
Mr. Dave appearing for the petitioner referred to the averments made in the memo of the petition and thereafter referred to the provisions contained in Section 107 of the Act. It was contended that at the time of filing the appeal, the petitioner is required to pre-deposit 10% of the amount of tax assessed by the respondent authority. The respondents have already withdrawn Rs.46 lakh from the account of the petitioner maintained with HDFC Bank and therefore appropriate direction be issued to the respondents to refund the remaining amount i.e.Rs.42,44,664/- to the petitioner.
On the other hand, Mr Trivedi has opposed this petition and referred to the provisions contained in Section 73(9) read with Rules 142(5) and 142(6). It is submitted that the order dated 02.03.2022 came to be passed in FORM GST DRC-07.
It was submitted that once the amount of Rs.46 lakh is already recovered as per the provisions contained in the Act read with the Rules, it was not open for the petitioner to request for refund of the said amount merely because the petitioner has preferred an appeal under Section 107 of the Act.
It was not in dispute that the petitioner preferred an appeal under Section 107 of the Act after the period of limitation i.e. after a period of three months. Along with the said appeal, the petitioner has also preferred a separate application for condonation of delay.
The said proceedings are still pending before the Appellate Authority. Now, it was the contention of the petitioner that, in the meantime, on completion of a period of three months, the respondents have passed an order of provisional attachment under Section 83 of the Act and thereby the amount of Rs.46 lakh came to be withdrawn from the account of the petitioner maintained with HDFC Bank.
It was the case of the petitioner that as per the provisions contained in section 107 of the Act, the petitioner is required to pre-deposit 10% of the amount of tax i.e. Rs.3,55,334/-. However, the respondents have recovered an amount of Rs.46 lakh and therefore it is prayed that the respondents be directed to refund the remaining amount of Rs.42,44,664/- to the petitioner.
While dismissing the WP the Coram comprising Justice Vipul M Pancholi and Justice Devan M Desai viewed that such contention is misconceived in view of the provisions contained in Section 73(9) read with Sections 78 and 107 of the Act. If the appeal filed by the petitioner is allowed by the Appellate Authority, it is always open for the petitioner to make such request before the Appellate Authority that direction be issued to the respondents to refund the amount.
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