MISMATCH BETWEEN GSTR-3B & GSTR-1 DOESN’T INVOKE SECTION 74 WITHOUT FRAUD: DELHI HC
From the order impugned before us, we note that the respondents lay the following allegations:
it has been found that the department had given many opportunities to the noticee to rebut the allegations, but the noticee had not submitted any documents neither to this office nor to the Audit-II Commissionerate, New Delhi, and just wasting the time of the department.
Whereas, it appears that as per Table-A above the noticee had declared tax liability in GSTR-3B as Rs. 5,10,21,02,608/- (IGSTRs. 32,53,11,56,59/-, CGST- Rs. 90,26,29,835/- and SGST- Rs. 90,26,29,835/-) whereas, tax liability declared in GSTR-1 is Rs. 5,05,83,75,329/- (IGST-Rs. 3,29,53,95,072/- CGST- Rs. 90,33,53,768/- and SGST-Rs. 90,33,53,768/-) therefore, it has been found that there is a huge difference of IGST- Rs. 4,22,79,413/-, CGST – Rs. 7,23,933/- and SGST-Rs. 7,23,933/- (total amount of Rs. 4,37,27,280/-). Therefore, it appears that there is a mis-match in GSTR-3B and GSTR-1 for amount of Rs. 4,37,27,280/- in the financial year 2017-18 and as per GSTR-9 (for FY 2017-18) the same has not been corrected by the noticee.
Whereas, the noticee had availed IGST of Rs. 4,80,64,08,184/- as reflected in (GSTR-3B) table -6(A) of the GSTR-9 for financial year 2017-18, however, IGST of Rs. 4,64,97,30,870/- reflected in (GSTR-2A) table 8(A) of the GSTR-9 for the financial year 2017- 18. Therefore, there is a huge difference of IGST-Rs. 15,66,77,314/- which was excess availed by the noticee during financial year 2017-18. As discussed above many opportunities have been given to the noticee to submit the relevant records for verifying the said difference but a vague reply has been submitted by the noticee, which could not help in reaching any conclusion, in this regard.
Whereas, it also appears that as per Table-B above of para -5, the noticee had utilized the amount of ITC as Rs. 3,83,67,99,504/- (IGST- Rs. 3,81,33,16,312/-, CGST-Rs. 1,17,41,596/- and SGSTRs.1,17,41,596/-), whereas, it has been found that the noticee had availed ITC as per GSTR-2A (FY 2017-18) as Rs.4,65,74,10,474/- (IGST-Rs. 4,64,67,30,268/-, CGST-Rs. 53,40,103/- and SGST- Rs. 53,40,103/-). Therefore, it has been found a huge difference of ITC as Rs. 82,06,10,970/- (IGST Rs. 83,34,13,956/-, CGST- (-) Rs. 64,01,493/- and SGST- (-) Rs. 64,01,493/-), which has been availed/ utilized in this regard has been received. DRC-01A dated 28.06.2024 has been issued to the taxpayer, but no reply in this regard has been received. Therefore, same is recoverable from the noticee under Section- 74(1) of the CGST Act, 2017.”
Prima facie, we doubt how the provisions of Section 74 of the Central Goods & Services Tax Act, 2017 would stand attracted on a mere allegation of a mismatch between GSTR-3B and GSTR-1. This we note since the said provision would itself be liable to be invoked only if it be alleged that a case of fraud, wilful misstatement or suppression of facts is made out. The matter requires consideration.
We, accordingly, provide that while it shall be open for the respondents to proceed further with the impugned Show Cause Notice, any final orders, if passed, shall not be given effect to till the next date of hearing.
DELHI HIGH COURT
XIAOMI TECHNOLOGY INDIA PVT LTD V/S ADDITIONAL COMMISSIONER, CGST DELHI WEST COMMISSIONERATE & ORS.
HON'BLE MR. JUSTICE YASHWANT VARMA HON'BLE MR. JUSTICE RAVINDER DUDEJA
W.P.(C) 15297/2024
29.10.2024
