Writ Petition cannot be filed directly after issuance of intimation of tax

The Hon’ble Karnataka High Court in the case of M/s. Sri Nanjudappa Constructions v. Union of India [Writ Petition No. 34742 of 2024 (T-RES) dated January 15, 2024] dismissed the writ petition was to be dismissed as premature since tax intimation issued to Assessee under Section 73(5) of the Central Goods and Services Tax Act, 2017 (“the CGST Act”) was not a final demand, and Assessee had an opportunity to contest it before any further proceedings.

Facts:

M/s. Sri Nanjudappa Constructions (“the Petitioner”) were issued intimation of tax along with interest under Section 73(5) of the CGST Act.

The Petitioner contended that they were not liable to pay tax on royalty.

Hence, aggrieved by the circumstances, the Petitioner filed the present writ petition.

The Respondent contended that the writ petition is premature and, intimation under Section 73(5) of CGST Act is to provide an opportunity to the Petitioner to pay the ascertained tax along with applicable interest, failing to pay, show cause notice (“the SCN”) would be issued under Section 73(1) of the Karnataka Goods and Services Tax Act, 2017 (“the KGST Act”). Further, the Petitioner can file any submission against the intimation of ascertainment of tax, it is open for the Petitioner to submit his submission.

Issue:

Whether application for writ petition can be filed in absence of the SCN?

Held:

The Hon’ble Karnataka High Court in Writ Petition No. 34742 of 2024 (T-RES) held as under:

• Noted that, intimation of tax ascertained under Section 73(5) of the KGST Act reveals that it is only an intimation of ascertained tax with liberty to the Petitioner to pay along with interest or to file his submission. Failing to pay the ascertained tax, the Petitioner would be issued further notice under Section 73(1) the KGST Act and thereafter the Competent Authority shall have to pass an order under Section 73(9) of the KGST Act. Further, intimation of tax ascertained provides an opportunity to file any submission of the Petitioner against the said intimation itself.
• Held that, no SCN is issued under Section 73(1) of the KGST Act and no order in terms of Section 73(9) of the KGST Act is passed. Hence, the present writ petition is too premature and the same is liable to be rejected at the present stage.

Our Comments:

Section 73 of the CGST Act governs “Determination of tax, pertaining to the period up to Financial Year 2023-24, not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilised for any reason other than fraud or any wilful-misstatement or suppression of facts.”. Section 73(5) of the CGST Act clearly states that person chargeable with tax may, before service of notice under 73(1) or, as the case may be, the statement under 73 (3), pay the amount of tax along with interest payable thereon under section 50 on the basis of his own ascertainment of such tax or the tax as ascertained by the proper officer and inform the proper officer in writing of such payment.

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