ORAL ORDER

(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

Heard learned advocate Mr. Bharat Raichandani with learned advocate Mr. Aditya R. Parikh with for the petitioner, learned Assistant Government Pleader Mr. Krutik Parikh for respondent No.2 and learned advocate Mr. Priyank Lodha for respondent Nos.

3 and 4.

2. By invoking the writ jurisdiction of this Court, the petitioner has prayed to call for the records pertaining to the recovery notice dated 28.05.2021 stated to have been issued by respondent No.3- the Directorate General of GST Intelligence, Vadodara. It is a further prayer made wanting this Court to go into the validity and legality of the said recovery notice and to hold that long term lease of 99 years is nothing but sale of land and building in terms of Entry 5 of Schedule III to Section 7 of the CGST Act,2017 and that it would not attract the levy of GST. It is further prayed to require the respondent authorities not to effect any recovery pursuant to the said notice.

3. Stating the bare minimum facts, the petitioner purchased the Plot Nos. 2201 and 2202 in the Ankleshwar Industrial Area of Gujarat Industrial Development Corporation. Deed of Assignment-cum- Slup Deed dated 28.10.2010 was executed. Subsequently, the petitioner sold of the said property by sale deed dated 08.06.2018 transferring rights thereunder to one Siddharth Interchem Private Limited. It was stated that the said Siddharth Interchem Private Limited would be using the plot for manufacturing operations. It further appears that the petitioner received impugned “recovery notice” as is styled by the petitioner in relation to the said transaction.

3.1 In the recovery notice it was inter alia stated thus:

“As you have agreed to transfer your rights and have received consideration for agreeing to transfer your rights and this activity would amount to service classifiable under “Other Miscellaneous Service (SAC 999792), taxable @ 18%, you are requested to pay the GST on the total consideration received by you for transferring your rights along with applicable interest and penalty and inform the details to this office, at the earliest.

Further, you are requested to submit the complete ledger for the relevant period in respect of M/s. Siddharth Interchem Pvt.

Ltd.”

3.2 On bare reading of the said communication dated 28.05.2021, described by the petitioner as “recovery notice”, we find that it is a mere communication from respondent No.3. We are at a loss at to why such communicative exercise has been undertaken by the department. Be that as it may.

4. We could immediately notice from the affidavit-in-reply dated

07.02.2022 affirmed by one Dr. Satish Dhavale, working as Additional Director General, Directorate General of GST Inteligence, Surat, that following is stated on oath:

“6. At the very outset, it is submitted that an inquiry was initiated against the petitioner and many other tax payers for the non-payment of GST on the transfer of leasehold rights. Accordingly, summons dated 16.04.2021 was issued to the petitioner for submitting the details in this regard. In response to the summons, the petitioner has submitted some of the documents called for, vide their letter/email dated 20.04.2021. After the perusal of the documents submitted by the petitioner, a simple letter/communication dated 28/5/2021 was issued to them for submitting pending documents and also informing them the legal provisions related to the transactions undertaken by the petitioner and requesting them to voluntarily pay the applicable GST along with interest & penalty in view of the legal provisions quoted in the said letter. The petitioner has misconstrued this simple communication letter as recovery notice and filed the present petition taking such an insignificant ground. The correct course of action, as followed by the various other taxpayers to whom identical letter were issued on the same issue, was to either correctly self-assess the GST liability on the said issue and/or if not agreeing