Sri Nanjudappa Constructions Vs Union of India
Date: January 14, 2024
Subject Matter
Filing writ petition immediately after intimation under Section 73(5), is pre-mature
Summary
The petitioner, represented by learned counsel Sri. Ganapathi Narayana Bhat, has approached the court to challenge an intimation of tax issued under Section 73(5) of the KGST/CGST Act, 2017, arguing that they should not be liable to pay tax on royalty. The respondent, represented by learned Additional Government Advocate Sri. K. Hemakumar, contends that the writ petition is premature as the intimation under Section 73(5) is merely an opportunity for the petitioner to pay the ascertained tax, along with interest, or to file a submission against the intimation. It was further argued that failure to pay the tax would lead to a show cause notice under Section 73(1) and subsequent action under Section 73(9). The court, after reviewing the pleadings and the applicable provisions, found the writ petition to be premature as no show cause notice or final order had been issued. Consequently, the court rejected the writ petition.
Heard the learned counsel Sri. Ganapathi Narayana Bhat for petitioner, learned counsel Smt. Swathi L. Kamat for respondent No.1 and learned Additional Government Advocate Sri. K. Hemakumar for respondent Nos.2 and 3. Perused the writ petition papers.
2. Learned counsel Sri. Ganapathi Narayan Bhat for petitioner would submit that petitioner is before this Court questioning Annexure-D, intimation of tax issued under Section 73(5) of the KGST/CGST Act, 2017, since the petitioner is not liable to pay tax on royalty.
3. Per contra, learned Additional Government Advocate Sri. K. Hemakumar would point out that writ petition is premature and Annexure-D, intimation under Section 73(5) of CGST Act, 2017 is to provide an opportunity to the petitioner to pay the ascertained tax along with applicable interest, failing to pay, show cause notice would be issued under Section 73(1) of KGST Act. Further, he invites attention of this Court to page 83 of the writ petition and submits that in case the petitioner intends to file any submission against the intimation of ascertainment of tax, it is open for the petitioner to submit his submission. Learned Additional Government Advocate would further submit that if the petitioner fails to pay the ascertained tax as intimated under Annexure-D, the Authority shall have to issue show cause notice under Section 73(1) and pass orders under Section 73(9) of the Act and thereafter the Authority will proceed with demand and recovery proceedings.
4. Having heard the learned counsel appearing for the parties and on perusal of the writ petition papers along with the provisions of KGST Act, I am of the view that writ petition of the petitioner is too premature and the same is liable to be rejected at this stage.
5. A perusal of Annexure-D, intimation of tax ascertained under Section 73(5) of KGST Act, 2017 would reveal 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, petitioner would be issued further notice under Section 73(1) and thereafter the Competent Authority shall have to pass order under Section 73(9) of KGST Act. Further, intimation of tax ascertained at Annexure-D also provides an opportunity to file any submission of the petitioner against the said intimation itself.
6. Since no show cause notice under Section 73(1) of KGST Act is issued and no order in terms of Section 73(9) of KGST Act is passed, the present writ petition would be premature. Hence, writ petition stands rejected.