Writ Petition Dismissed as Correctness of Findings of Fraudulent Availment of ITC Can’t Be Questioned in Writ Petition | HC

Case Details: Haldia Nirman Project (P.) Ltd. v. Additional Commissioner of CGST & CX - [2024] 163 taxmann.com 106 (Calcutta)

Judiciary and Counsel Details

• Raja Basu Chowdhury, J.
• nkit Kanodia, Ms Megha Agarwal, & Piyush Khaitan for the Petitioner.
• Bhaskar Prosad Banerjee, Tapan Bhanja, For the CGST & EX & Om Narayan Rai for the Respondent.

Facts of the Case

The petitioner was a company and proceeding was initiated against it by invoking extended period beyond limitation. It filed reply to said show cause notice and had questioned jurisdiction and authority of proper officer to initiate proceeding under section 74 of CGST Act. However, the proper officer had determined liability of assessee by confirming amount due and payable. It filed writ petition to challenge the order and submitted that the show cause notice had been issued beyond the ordinary period of limitation.

High Court Held

The Honorable High Court noted that the show cause notice had been issued in respect of the financial year 2017-2018, though, as per the provisions of Section 73 of the CGST Act, the ordinary period of limitation is only three years from the due date of filing the return for the financial year to which the tax not paid or short paid or input tax credit wrongly availed or utilized for any reason other than reasons of fraud, misstatement or suppression of fact to evade tax. The extended period can be invoked only in case of wilful misstatement, suppression of fact or fraud.

In the present case, the authorities clearly spelt out in no uncertain terms the basis for invocation of the extended period, which included suppression of fraudulent availment of input tax credit by way of wilful misstatement. Moreover, the correctness of findings and sufficiency/proof of such allegations could not be called in question by invoking extra-ordinary writ jurisdiction of Court. Therefore, it was held that the writ petition was liable to be dismissed.

List of Cases Referred to

• Commissioner of Service Tax v. Naresh Kumar & Company Pvt. Ltd. 2022 (67) G.S.T.L. 324 (Cal.) (para 3).