Circular, 2023

Text

Reproduced from the document India Code holds for this instrument. The Gazette prints Hindi and English side by side and this is the English; the Department's own PDF remains the authority.

Office. of the Pommissionery State Tax, Uttar Pradesh;

(GST Section) -_ _ Letter No. GST/2022-23/ SC /State Tax Lucknow: Dated: 6 Teil? 20 23 To, ' All Zonal Additional Commissioner Grade -l, Additional Commissioner Grade -2 (S.L.B.) State Tax, Uttar Pradesh.

Subject: Clarification with regard to applicability of provisions of section 75(2) of Central Goods and Services Tax Act, 2017 and its effect on limitation -reg. _ Attention is invited to sub-section (2) of section 75 of Uttar Pradesh Goods and Services Tax Act, 2017 (hereinafter referred to as “UPGST Act”) which provides that. _ in cases where the appellate authority or appellate tribunal or court concludes that the . notice issued by proper. officer under sub-section (1) of section:74 is not sustainable for. teason that the charges of fraud or any willful-misstatement or suppression of. facts to evade tax have not been established’ (hereinafter called as “noticee”), then the proper officer shall determine the tax payable” by the noticee, deeming as if the notice was issued under sub- section so) of section. 73.

2. Doubts have been raised by the field formations secking clarification regarding the time limit within which the proper officer is required to re-determine the amount of tax payable considering notice to be issued under sub-section (1) of section. 73,.. igainst the person to. whom such notice was:issued _ specially in cases where time limit for issuance of order as per sub-section (10) of 8... section 73 has already been over. Further, doubts have also been expressed regarding — the methodology for computation of such amount payable by the noticee, deeming the 7 notice to be issued. under sub-section (1) of section 73.

3. In order to. clarify ‘the issue and to ensure uniformity in the implementation of the provisions of law across the field formations, the Commissioner, in exercise of its powers conferred by section 168 of the UPGST Act, hereby Clarifies the issues as under:

S.No. Issue Clarification In some of the cases where the show cause notice has been issued by the proper officer to a noticee under sub- section (1) of section 74 of UPGST Act for demand of tax.not.paid/ short paid or erroneous refund or input tax credit wrongly availed or utilized, the appellate authority or appellate tribunal or the court concludes that the said notice is not sustainable under sub- section (1) of section 74 of UPGST Act for the reason that the charges of fraud or any willful-misstatement — or suppression of facts to evade tax have not been established against the noticee and directs the proper officer to re- determine the amount of tax payable by the noticee, deeming the notice to have been issued under sub-section (1) of section 73 of UPGST Act, in accordance with the provisions of sub- section (2) of section 75 of UPGST Act.

What would be the time period for re- determination of the tax, interest and penalty payable by the noticee in such cases? e Sub-section (3) of section 75 of UPGST Act provides that an order, required to be issued in pursuance of the directions of the appellate authority or appellate tribunal or the court, has to be issued within two years from the date of communication of the said direction.

e Accordingly, in cases where any |.

direction is’ issued by the appellate authority ‘or appellate tribunal or the court to re-determine the amount of tax payable by the noticee by deeming the notice to have been issued under sub- section (1) of section 73 of UPGST Act in accordance with the provisions of sub- section (2) of section 75 of the said Act, the proper officer is required to issue the order of redetermination of tax, interest and penalty payable within the time limit | as specified in under sub-section (3) of section 75 of the said Act, i.e. within a period of two years from the date of communication of the said direction by appellate authority or appellate tribunal or the court, as the case may be.

How the amount payable by the noticee, deeming the notice to have been issued under sub-section (1) of section 73, ‘shall be re-computed/ re-determined by the proper officer as per provisions of sub-section (2) of section 75? - e In cases where the amount of tax, interest and penalty payable by the noticee is required to be re-determined by the proper officer in terms of sub- section (2) of section 75 of UPGST Act, the demand would have to be re- determined keeping in consideration the provisions of sub-section (2) of section 73, read with sub-section 0) of section 73 of UPGST Act.

e Sub-section (1) of section 73 of UPGST Act provides for issuance of a show cause notice by the’ proper officer-for tax: | not paid’ .of short paid or erroneously |.

refunded, or where input tax crédit has Ole Page 2 of 6 been wrongly availed or utilized, in cases which do .not involve fraud or wilful misstatement or suppression of facts to evade tax. Sub-section (2) of section 73 of UPGST Act provides that such show cause notice shall be issued at least 3 months prior to the time limit specified in sub-section 10 of section 73. for issuance of order. As per sub-section (9) -of section 73 of UPGST Act, the proper _ Officer, is: required to determine the tax, interest and penalty due from the noticée and issue an order. As per sub-section

(10) of section 73 of UPGST Act, an order under sub-section (9) of section 73 has to be issued by’ the proper officer within three years from the due date for furnishing of annual return for the financial year in respect of which tax has not been paid or short paid or input tax credit has © been wrongly availed or , utilized. or from. the date of. erroneous refund. . coo .

It transpires from a sched renting’ ot these provisions that in cases which do not involve fraud or willful- misstatement or suppression of. facts to: evade payment of tax, the show cause notice in terms of sub-section (1) of section B of. UPGST Act has to be issued within 2 years and 9 months: from the due date. of furnishing of annual return for. the financial year to which such tax not paid or short paid or input tax credit wrongly availed or ‘utilized relates, or within 2 years and 9 months from the date of erroneous refund.

Therefore, in. cases where the ‘proper officer has to re- -determine the amount of tax, interest and ~ penalty payable deeming the notice to have been. issued under sub-section (1) of. section 73. of Ole | Page 3 of 6 ~ UPGST Act in terms. of sub- -section (2) O/C of section 75, of the said Act, the same can be rfe- -determined | for so much amount. of tax short paid or not paid, or input tax credit wrongly availed or ‘utilized or that of erroneous refund, in respect of which show cause notice was issued within the time limit as specified under sub-section (2). of section 73 read with sub-section (10) of section 73 of UPGST Act. Thus, only the amount of tax short paid or not paid, or input tax credit wrongly availed or utilized, along with interest and. penalty payable, in terms of section 73 of UPGST Act relating to such financial years canbe re- -determined, where show cause notice was issued within 2. years and 9 months from the due ‘date of furnishing of annual return for the respective financial year. Similarly, the amount of tax payable on account of erroneous refund along with interest and penalty. payable can be re- -determined only where show cause notice ‘was issued within 2 years and 9 months from the date of erroneous refund. .

In case, where the show cause notice under sub-section (1) of section 74. was issued for tax short paid or tax not paid or wrongly availed or utilized input tax credit beyond a period of 2 years and 9 months from the due date of furnishing of the annual return ‘for the financial year to which such demand relates to, and the | appellate authority concludes that the notice is not sustainable under sub- section (1) of section 74 of UPGST Act thereby deeming tfle notice to have been issued under sub-section (1) of section 73, the entire proceeding shall have to be dropped, being hit by the limitation of time as specified in section 73. Similarly, .

where show cause notice under sub- Page 4 of 6 section (1) of-section 74 of UPGST Act . was issued. for erroneous refund beyond ~ a period of 2 years and 9 months from the date of erroneous refund, the entire . proceeding shall have to be dropped.

e In cases, where the show cause in terms of ‘sub-section (1) of. ‘section 74 of UPGST Act was issued for tax short paid or not: paid. tax or wrongly availed or | utilized input tax credit or on account of Cs ne) tees f. @ttoneous refund within 2. years. and 9 ~ months from the’due date of furnishing of the annual return for the said financial year, to which such demand relates to, or from: the date of erroneous refund, as the case may- be; the entire amount of the said demand in the show cause notice would be covered under re- 2-determined ainount, , Jo Where the show cause ‘notice under sub- ‘section (1) of” section 74 was issued for inultiple financial | years, and where notice had been issued. before the expiry of the time period as per sub- section Q) of section 73. for one financial year but.

after the expiry of the said due date for _ the other financial years, then the amount . payable in terms. of section 73. shall be re- -determined ‘only in respect of that financial. year. for ‘which show cause notice was issued before the. expiry of a: the ‘time “period as: - specified . in sub- section (2) of section. 3. .

4, It is requested that suitable trade notices may be issued to ‘0 publicize the contents | of this Circular. : : ,

5. Difficulty, if any, in implementation of this Circular may: be brought to ‘the S notice of the undersigned.

oun (By Orde .

Commissioner, State Tax, U.P.

One” ” Page 5 of 6 Copy To:

1. Joint Commissioner (1.T.), State Tax HQ, Lucknow for uploading the Circular on the Departmental Website. ‘ Wes I Doh State Tax HQ, Lucknow.

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Provisions this circular answers to

Read out of the instrument itself: an enabling provision is one it says it was made under, which is the power it rests on. The rest it names without resting on.

Other instruments under the same Act

All of the The Uttar Pradesh Goods and Services Tax Act, 2017