242.
A show cause notice has been served on B Ltd., transporting agency
providing services for transporting goods from one place to another, on 1.4.2017
for taking refund errorneosly in order to evade tax for the period 2013-14:
Errorneous
refund: 2,00,000
Interest
u/s 50
Penalty:
50% of errorneous refund
Discuss
the validity of the order if it is a
case of fraud & the order was passed by
the officer on:
(i)
15.08.2017, monday
(ii)
15.11.2017, wednesday
(iii)
25.12.2018, monday
(iv)
05.02.2020, friday
(v)
24.12.2018, sunday
As per section 74(10) of the CGST Act, the proper officer shall issue the order within five years from the due date for furnishing of annual return for the financial year to which the tax not paid or short paid or input tax credit wrongly availed or utilised relates to or within five years from the date of erroneous refund. The tax short paid pertains to the year 2013-14 for which the order date shall not be later than 31st December 2019.
a. As per section 74(2) of the CGST Act, the proper officer shall issue the SCN at least six months prior to due date for issuance of order. The SCN was issued on 1.04.2017 i.e. within time limit. However, as the SCN is issued on a national holiday, the same is invalid.
b. since the order is issued as per the time limit mentioned u/s 74(2) & within 5 years from due date for furnishing of annual return for the financial year 2013-14 to which the tax was short paid.Thus. the demand regarding the same is valid.
c. since the order is issued on a national holiday, the order stands invalid.
d. the due date for issue of order shall be not later than 31.12.2019. the order was made after the due date i.e. on 5.2.2020, thus, the same is invalid.
e. since the order is issued on Sunday which is a national holiday, the order is invalid.