Delhi High Court - Orders
Kone Elevator India Private Limited vs Commissioner, Central Tax Delhi West & ... on 22 November, 2024
Author: Yashwant Varma
Bench: Yashwant Varma, Dharmesh Sharma
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 15831/2024 & CM APPL. 66455/2024 (Interim Relief)
KONE ELEVATOR INDIA PRIVATE LIMITED.....Petitioner
Through: Mr. Sparsh Bhargava, Ms.
Ishita Farsaiya and Ms.
Vanshika Taneja, Advs.
versus
COMMISSIONER, CENTRAL TAX DELHI WEST & ORS.
.....Respondents
Through: Mr. Akshay Amritanshu, SSC
along with Ms. Swati Mishra,
Ms. Drishti Saraf and Ms.
Pragya Upadhyay, Advs.
Mr. Premtosh K. Mishra, CGSC
along with Mr. Manish Vashist
and Ms. Sanya Kalsi, Advs. for
UOI.
Mr. Rajeev Aggarwal, ASC
along with Mr. Shubham Goel,
Adv. for R-5.
CORAM:
HON'BLE MR. JUSTICE YASHWANT VARMA
HON'BLE MR. JUSTICE DHARMESH SHARMA
ORDER
% 22.11.2024 W.P.(C) 15831/2024 & CM APPL. 66455/2024 (Interim Relief)
1. Notice. Let the noticed respondents file their replies if so chosen and advised, within a period of two weeks from today. The petitioner shall have a week thereafter to file a rejoinder affidavit.
2. We take note of the principal allegations which have been levelled in challenge to the original Show Cause Notice 1 dated 31 May 2024, and which had sought to create a liability on account of a 1 SCN W.P.(C) 15831/2024 This is a digitally signed order.
Page 1 of 3The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/11/2024 at 21:38:07 discrepancy between the GSTR-1 and GSTR-3B as follows:
"i. Short payment of liability (GSTR-1 vs GSTR-3B):
Manual calculation of tax liability as per GSTR-1 including amendments and GSTR-3B has been done, and it has been found that the Noticee has paid short tax as under:
Liabilities as per GSTR-1
Integrated Tax Central Tax State/UT Tax
Total Outward Supplies 13548349 84888204 84888204
A. Total Amendment to
Outward Supplies 11718740 11718740
Advances Received or
Adjusted 122346038 122346038
Total 13548349 218952982 218952982
B. Total Liability declared in 13548349 79723704
GSTR-3B 79723704
C. Difference (A-C) 0 139229278 139229278
Total Difference 278458555
As per above, there is short payment of Rs.27,84,58,555/-. However, the Noticee has submitted that they are unable to understand the amount disclosed in chart Central Tax of Rs 84888204 and State tax of Rs 84888204. The Noticee requested to provide the details of the above tax amount in respect of CGST and SGST. Further they submitted that this office has wrongly considered the amount of Amendment of Rs 1,17,18,740 under each of head of CGST and SGST where the actual amendment for the FY 2018-19 made in the FY 2019-20 amounting to Rs 6,54,509 under each head of CGST and SGST. Further, wrongly considered tax liability on advances received and advances adjusted for Rs 12,23,46,038 under each head of CGST and SGST whereas the actual tax liability on advances received is Rs 6,05,89,268 under each head of CGST and SGST and the actual tax liability on advances adjusted is Rs 6,17,56,768.53 under each head of CGST and SGST. The net impact of Advance received and adjusted is Rs 11,67,500, but your goods self has added the amount of tax on advances received and adjusted instead of arriving the net impact between the two amounts, hence the amount of difference of tax liability for Rs 12,23,46,109 under each head of CGST and SGST considered by your good self is not correct. This office has provided all above data to the Noticee, however they could not explain reason of above short payment. They has not submitted any documentary evidence in support of their contention. Hence, noticee's contention does not seem satisfactory and the Noticee has violated provisions made under Section 9 of the CGST Act, 2017, hence an amount of Rs. 278458555/- (IGST Rs. 13,92,29,278/-, CESS Rs. 13,92,29,278/) W.P.(C) 15831/2024 This is a digitally signed order.Page 2 of 3
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/11/2024 at 21:38:07 is recoverable with applicable interest. Hence, applicable interest under Section 50 of the CGST Act, 2017 and penalty under Section 122 of the CGST Act, 2017 are also recoverable from the Noticee."
3. After considering the petitioner's responses to the SCN, the authority in its order dated 30 August 2024 has proceeded to observe as follows:
"13.4 Therefore, based on the self-assessed outward liability declared by the Noticee in their GSTR-1 returns, for the financial 2019-20, the noticee was required to declare the same liability in their GSTR-3B returns for payment of self-assessed tax. Thus, I hold that by not declaring their outward supplies in GSTR-3B returns, the Noticee has made short payment of tax of Rs. 27,84,58,555/- (IGST Rs. 13,92,29,278/-, CESS Rs. 13,92,29,278/-). In view of the above, I infer that Section 73 of CGST Act, 201 7 has been rightly invoked and the noticee is liable to make payment of Rs. 27,84,58,555/- (IGST Rs. 13,92,29,278/-, CESS Rs. 13,92,29,278/-)."
4. Prima facie, we find ourselves unable to sustain the conclusions as recorded and which ex facie show that while referring to Section 9 of the Central Goods and Services Tax Act, 20172, the liability which is created ultimately is with reference to Integrated Goods and Services Tax3 and cess leviable.
5. We consequently stay the impugned order dated 30 August 2024.
6. Let the writ petition be listed on 13.01.2025.
YASHWANT VARMA, J.
DHARMESH SHARMA, J.
NOVEMBER 22, 2024/DR 2 Act 3 IGST W.P.(C) 15831/2024 This is a digitally signed order.
Page 3 of 3The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/11/2024 at 21:38:07