In W.P.(C) 694/2021-TRI HC- Form GST DRC01A is intimation of ascertained tax and not show-cause notice which assessee prays to quash: Tripura HC dismisses Petition after taking note of pending proceedings initiated by State Taxes Addl. Commissioner
Justice Arindam Lodh [14-03-2023]

Read Order:SL Automobiles Private Limited Vs. The State Of Tripura And Ors

LE Correspondent

Agartala, April 10, 2023:  The Tripura High Court has recently dismissed a writ petition, whereby the petitioner had challenged the “authorization for inspection and search” issued by the Additional Commissioner of State Taxes, Tripura as well as subsequent order of seizure and order of prohibition, issued by the Superintendent of State Taxes.

This petition, before the Bench of Acting Chief Justice Arindam Lodh, challenged the “intimation of tax ascertained as being payable” issued by the Superintendent of State Taxes advising the petitioner to pay an amount of Rs 1,28,37,517 on account of tax as ascertained alongwith applicable interest and penalty.

The petitioner, a dealer of Honda motorcars, sent a vehicle from Guwahati to Agartala by way of a branch transfer but upon payment of full IGST. The State GST authorities, however, had the belief that not IGST but CGST and SGST were payable since this was an incident of local sale. 

Under a memo, the Superintendent of State Tax seized the three motorcars which were lying in the showroom of the petitioner at Agartala. The Superintendent of State Tax issued a notice under Section 74(1) of the CGST Act and passed an intimation/order asking the petitioner to pay a sum of Rs 1,28,37,517 by way of unpaid CGST and SGST with interest and penalty. These orders of attachment and assessment had been challenged in this petition.

The petitioner had contended that the case was one of inter-state sale and the petitioner was bound only to pay IGST from which the State would receive its share or revenue. It was also argued that there cannot be double taxation. The Counsel submitted that seizing of the vehicles of the petitioner and directing him to may payment of Rs 1,28,37,517 alongwith interest and penalty was wholly illegal and without jurisdiction. 

The Bench made reference to Annexure XIII to this writ petition which was intimation of tax ascertained as being payable under Section 73(5)/74(5) whereby the fourth respondent had advised the petitioner to pay the amount of tax as ascertained alongwith amount of applicable interest and penalty and requested the petitioner to file any submission if he desired against the said ascertainment in Part B of the Form.

The Bench also referred extensively to this Annexure under challenge in this writ petition, which clearly showed that if the petitioner failed to submit any response/reply to the liability intimated under Section 73(5) in Part-B within the time stipulated, in that case, Show-Cause notice would be issued against the petitioner. 

“Thus, it is aptly clear that Annexure XII (dated 25.08.2021) is not a show-cause notice, which the petitioner prays to quash in this writ petition. Moreover, the proceeding initiated by the respondent no. 4 against the petitioner is pending and without any outcome of the proceeding, the petitioner had approached this court”, the Bench said.

The High Court was of the opinion that the writ petition filed by the petitioner was at the pre-mature stage. Dismissing the same, the Bench gave liberty to the petitioner to approach the appropriate forum. 

The petitioner had expressed that the petitioner had already paid the taxes, and he was not liable to pay any further tax and with regard to the consideration, the tax authorities had not considered it in its entirety. 

The petitioner had also expressed that the demand made for Rs 1,28,37,517.43 is not payable, and in that event if he prefers an appeal under the statute, 50% of the same needed to be paid which could again burden the petitioner.

“ Having concerned to the submission made by the petitioner, this court makes it open to the petitioner to file an appropriate application seeking dispensing of the same, and if such an application is filed, it is open for the revisional authority to consider the case of the petitioner in accordance with law”, the Bench held.

Therefore, holding the writ petition to be premature and not maintainable, the Bench dismissed the same.