The Gauhati High Court granted interim protection while stating that the notification extending the period to pass order not in consonance with Section 168(A) Of Central GST Act, 2017.
The bench opined that it prima facie appears that the notification bearing No.56/2023 is not in consonance with the provisions of 168(A) of the Central GST Act, 2017. If the said notification cannot stand the scrutiny of law, all consequential actions so taken on the basis of such notification would also fail.
The court found that an examination would be required as regards the applicability of the force majeure in respect to the notification bearing No. 56/2023 taking into account the contents of the Minutes of the 49th Meeting of the GST Council.
The court opined that an opportunity has to be granted to the Respondent Authorities to place on record their stand as well as bringing on record the materials on which they claim the applicability of the force majeure.
The bench further opined that the Petitioners are entitled to an interim protection pending the notice.
Facts
The Petitioners have assailed the action on the part of the Central Board of Indirect Taxes and Customs in issuance of a notification bearing No. 56/2023. The challenge to the said notification are for two fold.
First, the said notification so issued by the Central Board of Indirect Taxes and Customs is ultra vires Section 168A of the CGST Act, 2017 on the ground that there is no recommendation of the GST Council which is the mandatory requirement for the purpose of issuance of the said notification.
Referring to the various provisions of the GST Act as well as the 49th Meeting of the GST Council, the learned counsel submitted that the GST Council had made a recommendation thereby extending the time limit for passing of the order under Sub-Section (9) of Section 73 of the CGST Act, 2017 for the Financial Year 2017-2018 up to 31.12.2023; for the Financial Year 2018- 2019 up to 31.03.2024 and for the Financial Year 2019-2020 up to 30.06.2024.
Counsel appearing on behalf of the Petitioners submitted that in the instant case, the COVID period being over and there being already an extension so granted and the reasons sought for extension as could be seen from a perusal of the Minutes of the 49th Meeting of the GST Council that the authorities concerned are not in a position to carry out complete the audit, assessment etc. for lack of manpower.
He submitted that not being able to carry out the audit/assessment etc. on account of lack of man power as would appear from the Minutes of the Meeting of the 49th GST Council cannot under any circumstances be said to be a “force majeure”.
Standing counsel appearing on behalf of the Respondent CGST submitted that that there is no recommendation insofar as the issuance of the notification bearing No. 56/2023 dated 28.12.2023. However, in view of a recommendation so made by the GST Implementation Committee, the said notification bearing No. 56/2023 dated 28.12.2023 has been issued.
Standing counsel appearing on behalf of the Assam GST, submitted that the authorities under the Assam GST follows the notifications which has been issued by the Central GST and as such said notification bearing No.56/2023 dated 28.12.2023 shall also be applicable insofar as the Assam GST is concerned.
Counsel appearing on behalf of the Petitioners submitted that the provisions of Section 11(4) of the Assam GST Act, 2017 permits that certain notifications which relates to Section 11(1) and 11(2) of the Assam GST Act, 2017 can only be adopted.
Case Information
Case Name: SHREE SHYAM STEEL v/s UNION OF INDIA AND ORS
Judicial Level & Location : Gauhati High Court
Case Number : WP(C)/3838/2024
Date of Decision : 02/08/2024
Decision in favor of: Petitioner
Judges: Justice Devashis Baruah
