Orissa High Court
M/S. Serajuddin And Co vs State Tax Officer Ct And Gst ..... ... on 20 August, 2024
Bench: Arindam Sinha, M.S. Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.19798 of 2024
M/s. Serajuddin and Co., ..... Petitioner
Kendujhar
Represented by Adv.-
Mr. P.K. Jena, Advocate
-versus-
State Tax Officer CT and GST ..... Opposite Parties
Circle, Barbil and another
Represented by Adv.-
Mr. S. Mishra, Standing Counsel
CORAM:
THE HON'BLE MR. JUSTICE ARINDAM SINHA
AND
THE HON'BLE MR. JUSTICE M.S. SAHOO
ORDER
20.08.2024 W.P.(C) no.19798 of 2024 and I.A. no.10397 of 2024 Order No.
01. 1. Mr. Jena, learned advocate appears on behalf of petitioner and submits, under challenge are order dated 22nd November, 2022 made under section 73 of Odisha Goods and Services Tax Act, 2017 as well as garnishee orders dated 1st August, 2024 issued to Page 1 of 7 suppliers of his client and his banker. Tax on differential royalty at 13% was paid by his client. The payment was acknowledged manually on challans as it could not be made on the system. In the circumstances, relevant DRC-03 acknowledgements could not be generated.
2. He submits, there can be no dispute that the tax was paid. He draws attention to garnishee order dated 27th July, 2023, earlier issued pursuant to impugned order dated 22nd November, 2022 for recovery in respect of period January, 2019 to March, 2019. He then demonstrates that by subsequent communication dated 10 th August, 2023 to his client's banker, the garnishee order was intimated as withdrawn. Suddenly thereafter, on 1st August, 2023 said earlier withdrawn demand along with demands for subsequent periods, in excess of aggregate ₹65,00,00,000/- for royalty tax allegedly not paid was sought to be recovered by revenue on impugned garnishee orders dated 1st August, 2024. His client is therefore before Court for interference.
3. On query from Court regarding why no action was taken by petitioner subsequent to passing of order dated 22nd November, 2022 Mr. Jena submits, his client having had paid and in possession Page 2 of 7 of the challans acknowledging the same could not understand why such order was issued. When aforesaid earlier garnishee order was issued and revoked the authority had assured his client that it was error in the order, which would be rectified by the officer. Subsequently said was, rectification cannot be effected due to passage of time, leading to, he submits, issuance of impugned garnishee orders. He relies on paragraphs 26 to 28 of the writ petition, reproduced below.
"26. That the State Tax Officer, Opp. Party No.1 had issued notice vide No.1537/CT & GST dated 27.07.23 in Form GST DRC-13 U/r. 145(1) of the CGST/OGST Rules attaching the bank account of the petitioner for an amount of Rs.29,76,55,567.00 directing the Bank Managers, Punjab National Bank, Bapuji Nagar Branch, Bhubaneswar (A/c no.3221002100024555) UCO Bank (POST BOX 818), 10, BTM. SARANI, KOLKATA, 700001 (A/c no.01900200204292) and State Bank of India, Commercial Branch Bhubaneswar (A/c. no.00000031454235469) to pay Rs.29,76,55,567.00 in compliance to the provisions contained in clause (c)(i) Sub-Section (1) of Section 79 of the CGST/OGST Act.
Copy of the Notice issued in Form GST DRC-13 by the State Tax Officer, Opp. Party No.1 vide Memo Page 3 of 7 No.1537/CT & GST dated 27.07.23 is enclosed herewith and marked as Annexure-11.
27. That as the petitioner has represented the aforementioned facts to the Head Office and has personally approach through its advocate, the Head office on through verification of the payments made by the petitioner directed the State Tax Officer to rectify the errors apparent on the face of the record and to withdraw the notice issued in Form GST DRC-13 to different banks and accordingly the State Tax Officer has withdrawn the notice issued in Form GST DRC-13 on 10.08.2023.
Copy of the notice of withdrawal is enclosed herewith and marked as Annexure-12.
28. That though the State Tax Officer withdrawn the attachment notice issued to different banks, but refused to rectify the errors apparent on the face of the record taking the plea that time has already elapsed."
4. Mr. Mishra, learned advocate, Standing Counsel appears on behalf of revenue and submits, the order having been made on 22 nd November, 2022, required petitioner, if aggrieved, to appeal within four months thereof. No appeal was preferred. At this point in time a writ petition challenging said order cannot be maintained as petitioner is seeking to bypass statutory remedy, not availed by him. Page 4 of 7 Today petitioner cannot file appeal against said order. The Supreme Court in exercise of power under article 142 in the Constitution of India would also not be in a position to condone the delay. There cannot and should not be interference in writ jurisdiction. He relies on judgment dated 6th May, 2020 of the Supreme Court in Assistant Commissioner (CT) LTU, Kakinada and others v. M/s. Glaxo Smith Kline Consumer Health Care Limited, paragraphs 14 to 16 (reported in (2020) 19 SCC 681).
5. We find from impugned order dated 22nd November, 2022, petitioner's contention of the tax paid, in absence of the DRC-03 was dealt by the authority to say as quoted below.
"......It is pertinent to note that the taxpayer may have utilized the above amount in discharging its monthly GST dues while filing returns in GSTR-3B or any other GST dues......"
Revenue seeks to visit petitioner with demand in excess of ₹65,00,00,000/-. The demand on principal was aggregate ₹36,92,80,702/-. On query from Court Mr. Mishra submits, prescribed period for effecting rectification under section 161 is three months or six months as the case may be. On further query Page 5 of 7 Mr. Mishra submits, the revoked garnishee order constitutes part of aggregate demand in impugned garnishee orders. He adds, the revocation was due to administrative reasons.
6. We have petitioner's contention supported by statements made in the paragraphs reproduced above. Specific contention has been that the authority said rectification is not possible due to lapse of time. Revenue urges insurmountable bar of delay against petitioner, who contends that the tax was paid. We have been shown prima facie that there is a statement on oath regarding rectification coupled with impugned order fixing petitioner with a demand on a supposition that the amount may have been paid to liquidate some other tax dues. It is revenue's contention that administrative or otherwise delay in the recovery cannot be drawn upon by petitioner to move this Court, on ground of delay. It has strongly relied on Glaxo Smith Kline (supra).
7. We are prima facie satisfied to admit the writ petition on facts and circumstances narrated above. Revenue may file counter by 10th September, 2024. Petitioner may file rejoinder, to be accepted on adjourned date upon advance copy served.
Page 6 of 7
8. List on 17th September, 2024. Impugned order, including the garnishee orders will remain stayed till next date of hearing.
(Arindam Sinha) Judge (M.S. Sahoo) Judge dutta/jyostna Signature Not Verified Digitally Signed Signed by: JYOSTNARANI MAJHEE Reason: Authentication Location: OHC Page 7 of 7 Date: 21-Aug-2024 16:37:25