The Gauhati High Court in the case M/S Surya Business Private Limited Versus The State Of Assam observed and has granted the interim stay of Show Cause Notice in the case of Surya Business Private Limited, wherein seeking reversal of ITC on account of default at the supplier’s end.
The bench headed by Justice Manish Choudhury in the case observed that the petition filed challenging the Show Cause Notice wherein it seeks reversal of ITC requires further examination and directed that the department shall not act upon the Show Cause Notice till the next date of listing.
In the present case, the petitioner or assessee has challenged the Show Cause Notice issued under Section 73(1) read with Section 50 of the Assam GST Act, 2017.
Therefore, the show cause notice called up the petitioner to show cause within 30 days which being from the date of receipt of the show cause notice as to why an amount of GST should not be recovered from the petitioner, being the input tax credit, ITC excess claimed for the period 2018–2019 plus interest and penalty.
Further, the petitioner in the plea assailed the Show Cause Notice on the ground that the petitioner had availed ITC on valid tax invoices raised by the supplier and had also made payment of taxes to the supplier.
On the other hand, it has been submitted by the department that the show cause notice has been issued after considering the instructions contained in Circular No. 183/15/2022 dated December 27, 2022, and more particularly Clause 4.1.1 thereof.
The court stated that as per the circular in case, where the difference between the ITC claimed in FORM GSTR-3B and that available in FORM GSTR 2A of the registered person in respect of a supplier for the financial year exceeds Rs 5 lakh, the proper officer shall ask the registered person to produce a certificate for the concerned supplier from the Chartered Accountant, CA or the Cost Accountant, CMA, certifying that supplies in respect of the invoices of the supplier have actually been made by the supplier to the registered person and the tax on such supplies has been paid by the supplier in his return in FORM GSTR 3B. Certificates issued by CA or CMA shall contain UDIN.
The court while considering the facts and circumstances of the case observed and has noted that the said matter would require further examination and will list the case on February 22, 2024.
The counsel, Advocate Ankit Kanodia appeared for the Petitioner. SC, Finance And Taxation represented the respondent.
