235.
A ltd. is in the
business of supplying plastic cans. GST was charged @ 5% under the head
“rubber & other articles”. The proper officer noticed that the plastic
cans shall be classified under the head “plastics & articles thereof” @
12% & is a case of misclassification. He issued a show cause notice on
1.6.2017 pertaining to the period 2013-14 raising the following demand:
Tax short levied: 10,000
Interest @12%
Penalty: 100% of tax short paid
Discuss
the validity of the order if the order was passed by the officer on:
a.
15.08.2017, monday
b.15.11.2017, wednesday
c.
25.12.2018, monday
d.05.01.2018, friday
e.24.12.2018, sunday
As per section 73(10) of the CGST act, the proper officer shall issue the order within three 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 three years from the date of erroneous refund. The tax short paid pertains to the year 2013-14 for which the order date shall be not later than 31st December 2017.
(i) As per section 73(2) of the CGST Act, The proper officer shall issue the SCN at least three months prior to due date for issuance of order. The SCN was issued on 1.06.2017 i.e. before three months of due date of passing of order. The same is valid.
(ii)
(a) since the order is issued on a national holiday,
the order stands invalid.
(b) since the order is issued as per the time limit mentioned u/s 73(10) within
3 years from due date for furnishing
of annual return for the financial year 2013-14 to which the tax was short
paid i.e., on 15.11.2017. the demand regarding the same is valid.
(c) since the order is issued on a national
holiday, the order stands invalid.