GST - NOTICES AND APPEALS - Discussion with Case studies

How to Handle GST Notices
( Adjudication and Appeals)
Adv ( CA) ARUP DASGUPTA, West Bengal, INDIA
LLB FCA ACS CISA
dgarup@gmail.com
3/25/2024 CA ARUP DASGUPTA, KOLKATA, INDIA 1

3/25/2024 2
CA ARUP DASGUPTA, KOLKATA, INDIA
I do not pray to protect
me from perils,
let me be fearless.
Amidst sorrow and pain,
I may not be consoled,
let me overcome.
I need not be helped,
Just let my strength hold.
Bipode
More Rakha
Koro –
Rabindranth
Tagore
*Tentative
Translation -
Gitabitan

3
"adjudicating authority" means any authority, appointed or
authorised to pass any order or decision under this Act, but does not
include the 1[Central Board of Indirect Taxes and Customs], the
Revisional Authority, the Authority for Advance Ruling, the Appellate
Authority for Advance Ruling, 2[the National Appellate Authority for
Advance Ruling,] 3[the Appellate Authority, the Appellate Tribunal and
the Authority referred to in sub-section (2) of section 171];
Section 2(4)
It is normally understood that an Assessment is conducted
by a proper officer.
In terms of Section 2(91) of the CGST Act, 2017,
“proper officer” in relation to any function to be
performed under this Act, means the Commissioner or the
officer of the central tax who is assigned that function by the
Commissioner in the Board;
Proper Officer
Definitions
3/25/2024 CA ARUP DASGUPTA, KOLKATA, INDIA
Appraisal, Evaluation, Estimation, Measurement,
Judgement, Review, Consideration, Opinion
- Oxford advance learners dictionary

4
“registered person” means a person who is registered under
section 25 but does not include a person having a Unique
Identity Number;
Registered
person
“taxable person” means a person who is registered or liable
to be registered under section 22 or section 24;
Taxable Person
Definitions

Appeals

• ABC Pvt. Ltd. was sending materials by transport to
lion Chemicals Pvt. Ltd. The vehicle was intercepted
at a checkpoint in West Bengal. The officer issued
MOV -7(Show cause Notice) to the driver of the
vehicle. As the materials were urgently required by
the customer, ABC Pvt. Ltd. (suppliers)made the
payment of the penalty through DRC-03, instead of
replying to the SCN. The vehicle was released, and
MOV-5 was issued. Now ABC Pvt. Ltd. requests its
tax litigation team for their view on the following
questions: -
1. Whether appeal can be filed against MOV-7(SCN)
3/25/2024 6

pointers
• As per 107(1) any person aggrieved by
any decision or order passed under this
Act or the State Goods and Services Tax
Act or the Union Territory Goods and
Services Tax Act by an adjudicating
authority may appeal to such Appellate
Authority as may be prescribed.
• Whether SCN is a decision?

scn

SHORT
PAYMENT
AND
EXCESS
AVAILMENT
CA
ARUP
DASGUPTA,
KOLKATA,
INDIA
 GG Infrastructure was providing construction services to different
government and local authorities. The local authorities deducted TDS as
applicable.
 In the month of April 2022, they receive a letter asking for different
documents & information as the department found certain mismatch
between turnover shown in GSTR-3B v/s turnover shown in GSTR-7 by
different deductors.
 GG Infrastructure submitted all necessary documents to substantiate their
claim, that they had reflected the proper Turnover in GSTR1 and paid the
proper taxes through GSTR 3B
 The representatives of GG Infrastructure visited the proper officer to explain
the issue. During the course of discussion, they were asked to submit the
documents relating to ITC.
 After 7 days of submission of the documents relating to ITC, they suddenly
received SCN u/s 74 and summary in DRC01 alleging short payment of
outward tax and excess availment of ITC
 After submission of reply, the same was not considered and no PH was
granted and the order was issued WITHOUT a summary in DRC 07
3/25/2024 9

QUERIES
• They now want clarification on the following
issues-
a) Whether DRC-01A has to be compulsorily
issued?
b) Whether GG Infrastructure was right in
submitting the documents relating to ITC?
c) Can SCN be issued on documents which were
not sought through official communication ?
d) Is PH compulsory?
e) As the order was issued without a summary in
DRC 07 is there any action to be taken

Whether DRC-01A has to be
compulsorily issued?
• Rule 142(1A) The proper officer may, before
service of Notice to the person chargeable with
tax, interest and penalty, under sub-section (1)
of Section 73 or sub-section (1) of Section 74, as
the case may be, 4[communicate] the details of
any tax, interest and penalty as ascertained by
the said officer, in Part A of FORM GST DRC-01A.
• May Vs Shall
• Are hearings compulsory for pre consultation
notice ?

Whether GG Infrastructure was right in submitting the
documents relating to ITC?
• The letter was issued for mismatch in turnover
between GSTR-7 and GSTR-3B. The Proper
Officer instructed them( verbally) to submit
documents relating to ITC which was not at all
required by the Proper Officer to verify the
relevant mismatch.
• Could GGI refuse to submit the documents
relating to ITC
• Can they now take a plea that the original
scope of investigation didn’t include ITC
mismatch but the same was included in SCN

Can SCN be issued on documents which were
not sought through official communication ?
• Relied upon documents
• 74(1) Where it appears to the proper officer
that any tax has xxxxxxxxxxxxxxx requiring him
to show cause as to why xxxxxxxxxxxx.
• Explanation 2.- For the purposes of this Act,
the expression "suppression" shall mean non-
declaration of facts or information which a
taxable person is required to declare in the
return, statement, report or any other
document furnished under this Act or the
rules made thereunder, or failure to furnish
any information on being asked for, in
writing, by the proper officer.

Is PH
compulsory?
CA
ARUP
DASGUPTA,
KOLKATA,
INDIA
• Principle of Natural Justice
• 73(9) The proper officer shall, after considering the
representation, if any, made by person chargeable with
tax, determine the amount of tax, interest and a penalty
equivalent to ten per cent. of tax or ten thousand rupees,
whichever is higher, due from such person and issue an
order.
• 74(9) The proper officer shall, after considering the
representation, if any, made by the person chargeable
with tax, determine the amount of tax, interest and
penalty due from such person and issue an order.
• (4) An opportunity of hearing shall be granted where a
request is received in writing from the person
chargeable with tax or penalty, or where any adverse
decision is contemplated against such person.
3/25/2024 14

As the order
was issued
without a
summary in
DRC 07 is
there any
action to be
taken
• Section 74(10) The proper officer shall issue the order
under sub-section (9) within a period of five 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 five years from the date of erroneous refund.
• Rule142 (5) A summary of the order issued under section
52 or section 62 or section 63 or section 64 or section
127 or section 129 or section 130 shall be uploaded
electronically in FORM GST DRC-07, specifying therein
the amount of 6[tax, interest and penalty, as the case
may be, payable by the person concerned].

SCN –
SUPPRESSION/ITC

Interpretation issue – Section 74
• During the course of audit , the audit team detected that there was short
payment of RCM on commission payments made by the RTP to its agent at
Germany. On being asked as to why the payment was not made, the RTP replied
that no RCM is due as the agent is an intermediary and the POS is Germany.
• The audit team issues the draft audit report on three Issues out of which two
were accepted by RTP. However, the issue of RCM was not accepted by the RTP.
Accordingly, a SCN was issued under Section 74 vide DRC-01A. The RTP visits his
GST consultant for clarification on the following grounds.: -
1. Whether SCN u/s 74 can be issued for matters which are arising due to
interpretation.
2. Whether personal hearing has to be granted for reply against DRC-01A.
CA ARUP DASGUPTA, KOLKATA, INDIA 3/25/2024 17

Whether SCN u/s 74 can be issued for matters
which are arising due to interpretation
(1) Where it appears to the proper officer
that any tax has not been paid or short paid
or erroneously refunded or where input tax
credit has been wrongly availed or utilised
by reason of fraud, or any wilful-
misstatement or suppression of facts to
evade tax, he shall serve notice on the
person chargeable with
tax……………xxxxxxxxx
Explanation 2.- For the purposes of this Act,
the expression "suppression" shall mean
non-declaration of facts or information
which a taxable person is required to
declare in the return, statement, report or
any other document furnished under this
Act or the rules made thereunder, or failure
to furnish any information on being asked
for, in writing, by the proper officer.

Whether personal hearing has to be granted for reply against DRC-01A.
• Rule 142(1A) The proper officer may, before service of Notice to the
person chargeable with tax, interest and penalty, under sub-
section (1) of Section 73 or sub-section (1) of Section 74, as the
case may be, 4[communicate] the details of any tax, interest and
penalty as ascertained by the said officer, in Part A of FORM GST
DRC-01A
• Rule (2A) Where the person referred to in sub-rule (1A) has made
partial payment of the amount communicated to him or desires
to file any submissions against the proposed liability, he may
make such submission in Part B of FORM GST DRC-01A
CA ARUP DASGUPTA, KOLKATA, INDIA 3/25/2024 19

Appeal
under
temporary
ID
• Akash Rice Mills Pvt Ltd based out of West Bengal had
supplied rice to a whole seller in Odisha. While the
material was being sent to the supplier, the vehicle got
intercepted in Balasore district of Odisha and was
detained as the driver did not have the supporting
documents as per Rule 138. A MOV 9 was finally issued
in the name of the driver Ratan Kumar and the amount
of penalty was paid by Akash Rice Mills Pvt Ltd.
• Questions
1. Who can file the appeal against the order issued by the
Investigation Wing?
2. What are the compliances that needs to be kept in mind
while filing the appeal in a state where the appellant is
not registered?

Who can file the
appeal against the
order issued by
the Investigation
Wing?
CA
ARUP
DASGUPTA,
KOLKATA,
INDIA
• As per 107(1) any person aggrieved by
any decision or order passed under this
Act or the State Goods and Services Tax
Act or the Union Territory Goods and
Services Tax Act by an adjudicating
authority may appeal to such Appellate
Authority as may be prescribed.
• In the case of E way bill matters, even if
the order is issued in the name of the
driver of the vehicle, the supplier can file
an appeal as he is aggrieved by the
order.
• Similarly in case of death of proprietor, if
an order is passed in the name of the
deceased proprietor, his legal heir can
also file an appeal against the order.
3/25/2024 21

What are the
compliances that
needs to be kept in
mind while filing the
appeal in a state where
the appellant is not
registered?
CA
ARUP
DASGUPTA,
KOLKATA,
INDIA
• User
id/Password
details of
Temp ID
• Change in
Authorised
Signatory
3/25/2024 22

Appeal in case of Death of Proprietor
• Kane Joseph lost his father during Covid in the year 2021. His father Mr Remo Joseph was into the business of
event management in Goa. His father had only a flat and some fixed deposits in the name of the business. However
he did not have any liability to be paid off. So after his father’s death, as he was the only surviving member of his
family, he got the flat mutated in his name but he didn’t get the FDs or the proceeds of current account
transferred in his name.
• However then Kane got busy at his work place and so did not have the time to discuss with his father’s legal
advisor/consultant about the closure requirements for the business. However suddenly on 14th November 2022, he
gets a demand order in the name of his father’s business of Rs 7 lacs for some shortfalls in payment of output tax
and excess availment of ITC.
• Questions
1. Is the Demand Order issued on 14th November 22 valid?
2. Who can file the appeal against the same? What are the things to be kept in mind?
3. What will be the recourse if he comes to know about the order only from the bankers of his father where the
business account has been attached?

Communication
• R Z Communications (RZC) was engaged in the business of advertising for some leading corporates. As it had lost many businesses
during Covid period, the team members started working from home. In June 22, it gets a notice stating that its PPOB was non
existent and so why the registration shouldn’t be cancelled. Somehow they could not attend the hearing on the two opportunities
provided to them. The registration was therefore cancelled since the date of registration. The order for cancellation was signed on
21st June 2022 by a DSC mentioned GSTN ( it also shows that DSC is not verified) and uploaded on the same date. However the tax
payer couldn’t file the appeal even in the 1st week of December.
• Questions
1. What would be effective date of communication of the order? What are the precautions to be taken in similar matters?
2. Can the appeal be filed in the 1st week of December?
3. In case appeal cannot be filed can he get relief in any other manner?
4. Assuming the appeal is filed and acknowledged in APL 02, can the PO of the recipients of RZC initiated recovery against them as
the registration is cancelled from the date of registration?
•

Best Judgment Assessment
• Juice India Pvt, Ltd. is into the business of wholesale trading of goods used in beauty parlors and salons. Due
to attractive discounts offered by many manufacturers in the month of March 2020, they purchased a lot of
stock. However, due to the onset of the lockdown in the last week of March they were unable to receive the
products. The products were received by them only in the month of July 2020. They could not make any
sales from the month of March to Oct 2020. However, due to covid restrictions and fund problems they
could not file the returns for the month of March to December 2020. In the month of January, they get a
notice for filing of returns within 15 days U/s 46. As they could not file the returns within 15 Days a best
Judgement assessment was made U/s 62 Considering the trend of sales in 2019-20. The RTP filed some of
the returns after 30 days.
• They seek Clarification for the following: -
1. Whether the returns filed by the RTP will be considered by the P.O. for dropping of the proceedings?
2. What are the alternative remedies available?

Section 61
Scrutiny of returns

3/25/2024 27
Subsection 1 Subsection 2 Subsection 3
The proper officer may
scrutinize the return and
related particulars
furnished by the
registered person to
verify the correctness of
the return and inform him
of the discrepancies
noticed, if any, in such
manner as may be
prescribed and seek his
explanation thereto.
In case the explanation is
found acceptable, the
registered person shall be
informed accordingly, and
no further action shall be
taken in this regard
In case no satisfactory
explanation is furnished
within a period of thirty
days of being informed by
the proper officer or such
further period as may be
permitted by him
or
where the taxable person,
after accepting the
discrepancies, fails to take
the corrective measure in
his return for the month
in which the discrepancy
is accepted,
the proper officer may
initiate appropriate action
including those under
Section 65 or Section 66
or Section 67, or proceed
to determine the tax and
other dues under Section
73 or Section 74.

Discussions
1. Return ? – Is GSTR 1 a return or statement of Outward supplies only
2. Related Particulars – Balance Sheet, E way bill Reports,
Comparative data analysis – ITC , OUTPUT TAX, TDS reports
furnished, TCS reports furnished,
3. Can ITR filed, 26 AS, Stock register, etc be referred under section 61
4. Mistake apparent from record
5. Discrepancy Vs Dispute
6. Initiated by PO

Analysis
1. Return is defined in section 2(97) and includes ‘any’ return ‘prescribed or
otherwise required to be furnished’.
2. Discrepancy –
a. Is an inconsistency or inaccuracy which is a very important requirement
to invoke section 61 that the Proper Officer must ‘discover’from within
the returns itself. Section 61 does not permit investigation into new
things not emerging from the returns as there other provisions with
checks and balances to an undertaken investigation.
b. Interpretation issue cannot be a discrepancy apparent from record. The
discrepancy is ‘lack of compatibility’arising from within the returns
and not from any external source of additional information.
3. Resolution – a taxpayer may take three routes
a. Admission and rectification or explanation
b. Non-admission and,
c. Admission but inaction by Taxpayer.

Analysis
4. Carrying out inspection - is not permitted without prior
permission from JC, there’s a special ingredient of ‘reason to
believe’
5. Proper Officer CANNOT carry out any assessment under
section 61.
6. In case, the explanation is not furnished OR explanation
furnished is not satisfactory, OR after accepting discrepancies, the
registered person fails to take corrective measures, in his return
for the month in which the discrepancy is accepted by him, the
proper officer, may take recourse to any of the following provisions:
a. Initiate departmental audit as per section 65 of the Act; or
b. Initiate Special Audit as per section 66 of the Act;
c. Initiate inspection, search, and seizure as per section 67 of the
Act;
d. Issue show cause notice u/s 73 & 74 of the CGST Act.

FORM GST
ASMT-10
RULE 99(1)
CA
ARUP
DASGUPTA,
KOLKATA,
INDIA
3/25/2024 31

FORM GST
ASMT-11
RULE 99(2)

FORM GST
ASMT-12
RULE99(3)

Mismatches
arising out of
technical
issues cannot
be a
discrepancy
3/25/2024
34
1
1 [2020] 121 taxmann.com 149 (AA - GST - AP)
Appellate Authority - GST, ANDHRA PRADESH
Vs Sri Kali Krishna Industries
Jan-Mar
It is pertinent here to observe that mismatch reports is indicative in nature,
but cannot be seen as final to conceive any suppression of turnover/tax.
The AA ought to have examined the appellant contentions submitted in
response to the show cause notice, which the AA failed to do so. Hence, the
determined under declared tax liability by AA, cannot be upheld as bona fide.
Therefore, the tax levied basing on mismatch reports is annulled & the
appellant contentions are found sustainable with reference to rational
arguments and corroborative evidence. Thus, the appeal on this aspect is
allowed and the tax so levied is annulled.
3
3
2
2
Section 61: Scrutiny of returns

Section 62
Assessment of non-filers of
returns

Section 62:
• Whether principle of Natural Justice is important for Section
62?
• Is the 30 day timeline binding on the taxpayer?
• Considering lock down, can strong decisions be taken against
the taxpayers for not working from office?

3/25/2024 37
Subsection 1
Subsection 2
Notwithstanding anything to the
contrary contained in section 73 or
section 74, where a registered taxable
person fails to furnish the return
under Section 39 OR Section 45,
even after the service of a notice
under Section 46, the proper officer
may proceed to assess the tax liability
of the said person to the best of his
judgment taking into account all the
relevant material which is available or
which he has gathered and issue an
assessment order within a period of
five years from the date specified
under Section 44 for furnishing of the
annual return for the financial year to
which the tax not paid relates.
Where the registered person furnishes
a valid return within thirty days of the
service of the assessment order under
sub-Section (1), the said assessment
order shall be deemed to have been
withdrawn but the liability for
payment of interest under subsection
(1) of section 50 or for the payment of
late fee under section 47 shall
continue.

38
‘Valid return’ is defined in Section 2(117) to mean a return filed
under Section 39(1) of the Act on which self-assessed tax has
been paid in full.
Section 2(117)
1. The provisions of section 62 can be invoked only in case of registered taxable
persons who have failed to file returns, as required,
a. under section 39 or
b. as the case may be, or final return on cancellation of registration under
section 45 of the Act.
2. Issuance of notice under section 46 appears to be a pre-condition for initiating
proceedings under Section 62 of the Act. However, Section 62 cannot be
invoked for non-filing of GSTR-1, GSTR-2, and GSTR-9.
3. It can be completed without giving notice of hearing to the assessee.
However, best judgment assessment should be made on the basis of material
available, or material gathered by the proper officer.
4. Best judgment is passed under section 62 and returns are not filed within 30
days, the order becomes final and even if returns are filed subsequently, the
order CANNOT be withdrawn. The only remedy will be to file such returns and
also prefer an appeal under section 107. - Sri Kubera Constructions (P.) Ltd.
Vs. State of Kerela
Definition and
analysis

Section 62(1) –
Opportunity of
Being Heard
3/25/2024
39
1
1
HIGH COURT OF PATNA
Vidyarthi Construction (P.) Ltd. vs. State of Bihar
Jan-Mar
Where Competent Authority passed assessment orders on assessee under section 62 on
best judgment basis without affording any adequate opportunity of hearing or assigning
any reason, impugned orders deserved to be set aside with a direction to Competent
Authority to decide matter on merits in compliance of principles of natural justice
Period March, 2018 and March, 2019 to June, 2019 - Assessee did not file returns for
period March 2018 and March, 2019 to June, 2019 - Competent Authority passed
assessment orders on assessee under section 62 on best judgment basis without affording
any adequate opportunity of hearing or assigning any reason and issued demand notice
upon it - Whether impugned orders passed by Competent Authority deserved to be
quashed and set aside for same to have been passed without following principles of
natural justice - Held, yes - Whether Competent Authority was to be directed to decide
matter on merits in compliance of principles of natural justice on or before 5-4-2021 -
Held, yes [Paras 3 and 7][In favour of assessee]
3
3
2
2

Section 62(2) –
30 Days time
3/25/2024
40
1
1
HIGH COURT OF KERALA
Amani Machine Centre vs.. State Tax Officer, Vadakara
Jan-Mar
Competent Authority passed assessment orders on assessee under section 62(1) on best
judgment basis - Assessee submitted relevant returns after 30 days from date of service
of assessment orders
As assessee did not furnish valid returns within 30 days from date of service of
assessment orders, assessee could not obtain benefit under section 62(2) for deeming
assessment orders already passed on best judgment basis as withdrawn
3
3
2
2

Coercive
assessment
during
lockdown
3/25/2024
41
1
1
HIGH COURT OF BOMBAY
Sahara Hospitality Ltd. vs. State of Maharashtra
Jan-Mar
Competent Authority made assessment of assessee for period March, 2020 to October,
2020 (during which lockdown was in force) under section 62(1) on best judgment basis
and also cancelled its registration
Assessment - Non-filers of returns - Period March, 2020 to October, 2020 - Competent
Authority made assessment of assessee for period March, 2020 to October, 2020 under
section 62(1) on best judgment basis - He also cancelled registration of assessee -
Assessee contended before High Court that Competent Authority made assessment for
period during which lockdown was in force and despite this it paid an amount of Rs.
10.25 lacs on 14-12-2020 which aspect had not at all been considered by Competent
Authority - Cancellation of registration did not indicate or acknowledge payment of GST
to tune of Rs. 10.25 lacs by it - Whether Competent Authority was to be directed to file
reply affidavit before returnable date - Held, yes - Whether impugned cancellation of
registration required to be stayed - Held, yes - Whether Competent Authority was to be
directed that he shall not take coercive steps further to best judgment assessment in
meanwhile - Held, yes [Paras 6 and 7] [In favour of assessee]
3
3
2
2

Moratorium
under IBC to
be considered
for GST
assessments as
well.
3/25/2024
42
1
1
HIGH COURT OF GAUHATI
National Plywood Industries Ltd. Vs Union of India
Jan-Mar
GST Authority passed assessment order on assessee and imposed tax and penalty -
Assessee filed writ petition stating that an order of moratorium had already been passed
against it by National Company Law Tribunal under provisions of Insolvency and
Bankruptcy Code, 2016 and GST Authority without examining aspect as to whether
order of moratorium also covered proceeding pending before GST Authority had
passed impugned order
From the order, it is discernible that the aspect as to whether a pending proceeding before
GST authority is also a proceeding as provided in section 14- (1) (a) has not been
examined by the Commissioner of GST and consequently the implication thereof i.e. if it
is a proceeding whether the order of moratorium would also cover the said proceeding,
has also not been looked into.
Accordingly, the order dated 15-11-2019 is hereby set aside and the matter is remanded
back for a fresh consideration by examining the aspect as to whether the order of
moratorium of the National Company Law Tribunal also covers the proceeding pending
before the GST authorities under the GST Act 2017.
3
3
2
2
Section 62: Assessment of non-filers of returns

Section 63
Assessment of unregistered
persons

• Section 63:
• In IPL, a NRTP has failed to register himself. Can action be
taken against him?
• Where the registration has been cancelled on grounds without
proper verification. Can assessment under Section 63 be
carried out?

3/25/2024 45
Subsection 1
Proviso to Subsection 1
Notwithstanding anything to the contrary
contained in section 73 or section 74, where
a taxable person fails to obtain registration
even though liable to do so,
or
whose registration has been cancelled under
sub section (2) of section 29 but who was
liable to pay tax,
the proper officer may proceed to assess the
tax liability of such taxable person to the best
of his judgement for the relevant tax periods
and issue an assessment order within a
period of five years from the date specified
under section 44 for furnishing of the annual
return for the financial year to which the tax
not paid relates:
Provided that no such
assessment order shall be
passed without giving the
person an opportunity of
being heard

Analysis
1. Section 29(2) of the Act covers 5 instances where registration may be
cancelled by proper officer:
a. A person who contravenes the provisions of this Act or Rules made
thereunder; or
b. A composition person who fails to furnish returns for 3 consecutive tax
periods; or
c. A person other than composition person who fails to furnish returns for
6 consecutive months or
d. A person who has sought voluntary registration but has failed to
commence business within 6 months; or
e. Where registration has been obtained by way of fraud, willful
misstatement or suppression of facts.

Section 64
Summary assessment
in certain special
cases

3/25/2024 48
Subsection 1
Proviso to Subsection 1
The proper officer may, on any evidence
showing a tax liability of a person coming to
his notice, with the previous permission of
Additional/Joint Commissioner, proceed to
assess the tax liability of such person to
protect the interest of revenue and issue an
assessment order, if he has sufficient grounds
to believe that any delay in doing so may
adversely affect the interest of revenue:
Provided that where the taxable
person to whom the liability
pertains is not ascertainable and
such liability pertains to supply of
goods, the person in charge of
such goods shall be deemed to
be the taxable person liable to be
assessed and liable to pay tax
and any other amount due under
this section.
Subsection 2
On any application made by
the taxable person within
thirty days from the date of
receipt of order passed
under sub-Section (1)
or
on his own motion, if the
Additional or Joint
Commissioner considers that
such order is erroneous,
he may withdraw such order
and follow the procedure
laid down in Section 73 or
section 74

Analysis
1. The Proper Officer must have evidence that there may be a tax
liability. It is this the ingredient that furnishes jurisdiction for the
Proper Officer to invoke section 64. ‘evidence’ is not merely
‘reason to believe but an evidence as per the Evidence Act which
has backing of the law. And if it were merely a reason to believe,
then that would not have been open for examination in further
proceedings Proper Officer’s apprehension that there may be tax
payable is not sufficient to vest with necessary jurisdiction.
2. Summary assessment under this Section is not a substitute for
assessments that are nearing the time limitation prescribed
for the issue of SCN. Further, the mere fact of non-payment
cannot be a ground for resorting to summary assessment, unless
there are factors indicating that such non-payment pertains to
admitted or undisputed tax liability.
3. Summary assessment is NOT the same as best judgment
assessment. Summary assessment must be based on qualitative
data and records far superior that in the case of best judgment
assessment.

Relevant case laws
for assessment in
general

Impugned
authorization
issued by
Additional
Commissioner
3/25/2024
51
1
1 2021 (55) G.S.T.L. 277 (Del.)
IN THE HIGH COURT OF DELHI
Rajiv Shakdher and Talwant Singh, JJ.
Jan-Mar
R.J. TRADING CO.
Versus
COMMISSIONER OF CGST, DELHI NORTH
W.P. (C) No. 4847 Of 2021, decided on 20-7-2021
No independent application of mind by Additional commissioner of CGST-
Delhi North Commissionerate - Therefore, impugned authorization issued by
Additional Commissioner of CGST-Delhi North Commissionerate flawed and
unsustainable in law - Accordingly, search and seize conducted by CGST-Delhi
North Commissionerate declared unlawful - Consequently,both orders of
seizure and prohibition set aside-Section 67 of Central Goods and services Tax
Act,2017.[paras 9.5, 9.6, 12, 16]
3
3
2
2

3/25/2024
52
'Reason to believe' - Meaning of - Expression 'reason to believe' not carries same
connotation as reason to suspect; standard of belief is that of a reasonable and
honest person and not one based on surmises and conjectures, or mere suspicion
- prima facie view to be formed based on evidence that may be direct or
circumstantial-section 67 of Central Goods and Services Tax Act, 2017 [para 9.3]
Jan-Mar

Statutory remedy,
not precluded from
interfering where,
ex facie, opinion
formed that order
is bad in law
3/25/2024
53
1
1 2021 (55) G.S.T.L. 294 (Pat.) IN THE HIGH COURT OF JUDICATURE AT PATNA
[THROUGH VIDEO CONFERENCING]
Sanjay karol,CJ. and S. Kumar, J.
Jan-Mar
NATIONAL ENTERPRISES
Versus
UNION OF INDIA
Civil Writ Jurisdiction Case No. 12233 of 2021, decided on 30-7-2021
HELD: Court, notwithstanding statutory remedy, not precluded from
interfering where, ex facie, opinion formed that order is bad in law - Order
may be bad in law for two reasons- (a) violation of principles of natural
justice,i.e. fair opportunity of hearing; no sufficient time afforded to petitioner
to represent his case and (b) order passed ex parte in nature, does not assign
any sufficient reasons which may even be decipherable from record, as to how
officer could determine amount due and payable by assessee
3
3
2
2

Statutory bar on
carrying out
simultaneous
parallel
investigations
3/25/2024
54
1
1 2021 (55) G.S.T.L. 420 (Mad.)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
S.M. Subramaniam, J.
Jan-Mar
KUPPAN GOUNDER P.G. NATARAJAN
Versus
DIRECTORATE GENERAL OF GST INTELLIGENCE, NEW DELHI
W.P. No. 15708 of 2021 and W.M.P. Nos. 16604 & 16605 of 2021,decided on
29-7-2021
HELD : Statutory bar on carrying out simultaneous parallel investigations by
two different Tax Authorities is only applicable when subject matter of two
investigations is same-In instant case, while state Tax Authorities had issued
notice pointing out certain discrepancies in Returns filed by petitioner, while
summons by Central Tax Authorities was with regard to investigations in a case
of seizure - pendency of different proceedings before state Tax Authorities
3
3
2
2

3/25/2024
55
Jan-Mar
cannot be a ground for barring Central Tax Authorities from investigating a
different matter - Restraining issuance of summons would tantamount to
paralyzing a fresh investigation- in view of this , action of central excise Authorities
was not to be interfered with- petitioner should respond to summons and defend
his position before such authorities-Respondent authorities were to investigate
matter - Section 6(2) of Central Goods and services Tax Act,2017 -Article 226 of
Constitution of India. [ Paras 5,10 to13]

Interest on
delayed
payment of tax
3/25/2024
56
1
1 2021 (55) G.S.T.L. 389 (Mad.)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dr. Anita Sumanth, J.
Jan-Mar
F1 AUTO COMPONENTS PVT. LTD.
Versus
STATE TAX OFFICER, SURVEY CELL-1,CHENNAI
W.P. No. 6631 of 2021 and W.M.P. No. 7188 of 2021,decided on 9-7-2021
Interest on delayed payment of tax - payment of tax made in cash as well as
by way of adjustment of Input Tax Credit (ITC) available in Electronic Credit
Ledger- Levy of interest on belated payment of tax made in cash, being
compensatory and mandatory in nature, liable to be upheld - Reliance placed
by assessee on section 42 of Central Goods and Services Tax Act,2017 not
applicable inasmuch as same related to mismatch of particulars at their end
vis-a-vis details furnished by supplier in returns whereas assessee's case
3
3
2
2

3/25/2024
57
Jan-Mar
pertained to wrongful availment of ITC which they reversed on being pointed out
by Department - As regards remittance of tax by way of adjustment/reversal of ITC
available in Electronic Credit Ledger, no interest liable to be paid as held in
Maansarovar Motors Private Limited [2021(44) G.S.T.L. 126 (Mad.)] - section 50 of
Central Goods and Services Tax Act,2017. [Paras 3 to 6,8]
Input Tax Credit - Mismatch of details furnished by supplier and
recipient of supply in their returns - Provisions of section 42 of Central Goods and
Services Tax Act, 2017 would apply only where mismatch is on account of error in
Revenue database or a mistake occurred at its end and not where assessee
wrongly claimed ITC - section 16 of Central Goods and Services Tax Act,2017.
[Para7]

Order against
deceased
assessee
3/25/2024
58
1
1 2020 (34) G.S.T.L. 414 (Ker.)
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Alexander Thomas, J.
Jan-Mar
VIMAL RAJ
Versus
STATE TAX OFFICER-1, STATE GST DEPARTMENT, KOTTAYAM
W.P. (C) No. 927 Of 2020(M), decided on 22-1-2020
Assessment - Order against deceased assessee - Assessment orders rendered
in March, 2019 passed against assessee who died in March, 2018-Orders
nullity in law - Liberty to concerned Authority to take fresh action in said
assessment proceedings, after ascertaining from competent Revenue Officials
as to who all are legal representatives or legal heirs of said deceased assessee
- sections 73 and 93 of Central Goods and Services Tax Act, 2017. [ Paras 5,6]
3
3
2
2

3/25/2024
59
Jan-Mar
It is made clear that the 1st respondent will be at liberty to take fresh action in
the said assessment proceedings, after ascertaining from the competent Revenue
Officials as to who all are the legal representatives or legal heirs of the said
deceased assessee and then the respondent will be at liberty to render reasonable
opportunity of being heard to such legal representatives and then finalise the
assessment proceedings in the manner known to law. It is made clear that this
court has interfered with the impugned proceedings only on the ground that the
assessee was already dead as on the date of assessment order and therefore, the
assessment orders is a nullity and no other issues are decided by this Court and
such other issues are left open.

Thanks for the wonderful opportunity
Thanks to all my team members for their tireless
efforts in preparing this PPT.
Thanks to You for your time in going through the
PPT
Adv (CA) Arup Dasgupta, West Bengal, India
LLB FCA ACS CISA
dgarup@gmail.com
Disclaimer : This presentation is only for the purpose of knowledge sharing with
specific recipients and does not purport to be legal opinion or soliciting
professionally.

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