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Notification 123

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8 views3 pages

Notification 123

Uploaded by

Maunik Parikh
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© © All Rights Reserved
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Neutral Citation No.

- 2024:AHC-LKO:74605-DB

A.F.R.

Court No. - 2

Case :- WRIT TAX No. - 264 of 2024

Petitioner :- M/S A.V. Pharma Thru. Its Prop. Smt. Madhu Vohra
Respondent :- State Of U.P. Thru. Prin. Secy. State Tax Lko. And 2
Others
Counsel for Petitioner :- Anuj Kudesia,Anurag Tyagi
Counsel for Respondent :- C.S.C.

Hon'ble Rajan Roy,J.


Hon'ble Manish Kumar,J.

1. Supplementary affidavit on behalf of petitioner and short


counter affidavit on behalf of State filed today are taken on
record.

2. Heard Shri Anuj Kudesia, learned counsel for the petitioner


and learned Additional Chief Standing Counsel for the State as
also Shri Akhilesh Kumar, Deputy Commissioner, State G.S.T.,
Lucknow, who is present before this Court.

3. The present writ petition has been filed with the following
reliefs:-

"i) to issue a writ, order or direction in the nature of Certiorari


quashing the order on Form GST DRC-13 dated 05.10.2024
issued by Deputy Commissioner, State Tax, Sector 05, Lucknow
contained as annexure no. 1 to this writ petition.

ii) to issue a writ, order or direction in the nature of certiorari


quashing the assessment order and DRC-07 dated 02.12.2023
issued by Deputy Commissioner, State Tax, Sector-5, Lucknow
contained as annexure no. 2 to this writ petition.

iii) to issue a writ, order or direction in the nature of


mandamus commanding the respondents to direct the petitioner
bank to de-freeze the two bank accounts operated petitioners
i.e. account No. 7711564951 and Accout No. 9946014812 in
Kotak Mahindra Bank. "

4. The contention of learned counsel for the petitioner is that the


impugned orders are barred by sub Section 10 of Section 73 of
the U.P.G.S.T. Act, 2017 (hereinafter referred to as, the Act,
2017) as they have been passed beyond the time limit
prescribed therein as calculated from the due date of filing
annual returns prescribed in Section 44 (1), which was extended
to 05.02.2020 and the time limit of three years ended on
05.02.2023 but the impugned orders are dated 05.10.2024 and
02.12.2023, therefore, the impugned orders are without
jurisdiction.

5. After hearing the parties, what comes out is that for justifying
the time limit within which the impugned orders have been
passed under Section 73 (9) and (10) of the Act, 2017 for the
financial year 2017-18 reliance is being placed upon a
notification dated 24.04.2023 by which the time limit of three
years mentioned in sub Section 10 of Section 73 was extended
for the financial year 2017-18 upto 31.12.2023, however, what
is being omitted from consideration by the opposite party is that
this notification dated 24.04.2023 has been given retrospective
effect only from 31.03.2023 and not prior to it, now, in this
context we may refer to Section 73 (10) of the Act, 2017, which
reads as under:-

"(10) The proper officer shall issue the order under sub-section
(9) within three years from the due date for furnishing of
annual return for the financial year to which the tax not paid or
short paid or input tax credit wrongly availed or utilised relates
to or within three years from the date of erroneous refund."

6. We may also refer to Section 44(1) of the Act, 2017, which


reads as under:-

"44. Annual return -(1) Every registered person, other than an


Input Service Distributor, a person paying tax under section 51
or section 52, a casual taxable person and a non-resident
taxable person, shall furnish an annual return for every
financial year electronically in such form and manner as may
be prescribed on or before the thirty-first day of December
following the end of such financial year.

Provided that the Commissioner may, on the recommendations


of the Council and for reasons to be recorded in writing, by
notification, extend the time limit for furnishing the annual
return for such class of registered persons as may be specified
therein:

Provided further that any extension of time limit notified by the


Commissioner of Central tax shall be deemed to be notified by
the Commissioner."

7. Ordinarily the due date for filing annual return is 31st


December of the end of the Financial Year, which in the case of
financial year 2017-18 would be 31.12.2018, however, this due
date for filing annual return, as already observed earlier, was
extended vide notification of the Central Board of Direct Taxes
and Customs dated, 03.02.2018 to 05.02.2020 and this
notification was adopted by the State of U.P. vide notification
dated 05.02.2020. Based on this notification, the period of three
years mentioned in sub Section 10 of Section 73 would end on
05.02.2023 meaning thereby, an order under sub Section 9 of
Section 73 for the financial year 2017-18 could have been
passed by 05.02.2023 but not after it. Now the opposite parties
are relying on the notification dated 24.04.2023 to submit that
in fact they could have passed the order under sub Section 9 of
Section 73 uptill 31.12.2023 however in doing so, they omit to
consider para no. 2 of the said notification which says that the
notification dated 24.04.2023 would be applicable
retrospectively but only from 31.03.2023 meaning thereby, if
the time limit of three years prescribed in sub Section 10 of
Section 73 read with sub Section 1 of Section 44 expired prior
to 31.03.2023 then the notification dated 24.04.2023 extending
the time limit for passing of an order under sub Section 9 of
Section 73 would not be applicable, apparently so.

8. Apparently the impugned orders are beyond the time limit


prescribed under sub Section 10 of Section 73 as applicable for
the financial year 2017-18 and therefore the impugned orders
are beyond jurisdiction being barred by the time provided in the
said provision, therefore, we allow the writ petition and quash
the impugned orders dated 05.10.2024 and 02.12.2023 issued
by the Deputy Commissioner, State Tax, Sector 05, Lucknow.

9. Consequences shall follow, accordingly. The accounts of the


petitioner which have been freezed shall be de-freezed.

Order Date :- 12.11.2024


Ashish

Digitally signed by :-
ASHISH MISHRA
High Court of Judicature at Allahabad,
Lucknow Bench

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