No, the Honorable Kerala High Court in the case of VadakkotChackoo Devassy v. State of Kerala and Others [WP (C) No. 42265 of 2023 dated 21.12.2023] set aside the Assessment Order and remitted the matter back for reconsideration in case where the Assessee could not file the reply due to cancellation of GST Registration and the show cause notice was issued the very next day of serving notice in GST ASMT-10. The Honorable Kerala High Court noted that the Petitioner was not afforded any time for filing a reply to the notice in GST ASMT-10 and it is not disputed that the Petitioner’s GST registration was cancelled before the said notices were uploaded in GST Portal and opined that there is a violation of principles of natural justice. The matter is remanded back to the file of the assessing authority and stated that the assesse will not take any ground regarding the limitation in finalising the assessment for the assessment year 2017-18.
Author’s Comments
Proceedings under section 73 of the CGST Act are completely different and independent of section 61 proceedings. Proceeding under section 61 of the CGST Act is a pre-adjudication exercise (where no demand can be confirmed and recovered) and certainly not a pre-condition to initiate proceedings under chapter XV of the CGST Act. Although, the Proper officer to issue a notice under sections 61 and 73 of the CGST Act might or might not be the same one, still the ground that no time was given for replying to the ASMT-10 notice is not a ground to vacate the demand order issued under section 73 of the CGST Act.
In the Author’s opinion, the petitioner could have taken the ground that there was no valid service of notice as per section 169 of the Act to fetch the desired relief from the Honorable Court.
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