ORDER

This case was heard along with a batch of 250 Writ Petitions and as one of the 53 Writ Petitions which were finally heard on the larger issue regarding the challenge to the proceedings under Section 74 of the respective GST Enactments.

2. In this Writ Petition, the Petitioner has challenged the Impugned Order dated 03.02.2025 for the Tax Period 2017-2018.

3. The Petitioner was earlier issued with an Intimation in Form GST DRC-01A dated 20.09.2023 for the Tax Period 2017-2018, to which, the Petitioner had replied on 29.10.2023 stating that the proposal in the said Intimation in Form GST DRC-01A dated 20.09.2023 was time barred in terms of limitation under Section 73 of the respective GST Enactments.

4. The disputed had arisen on account of a mismatch between the amount in GSTR-2A and the amount claimed by the Petitioner as Input Tax Credit in GSTR-3B.

5. The facts reveal that the Petitioner had claimed excess Input Tax Credit in GSTR-3B for discharging the tax liability during the Tax Period 2017-2018.

6. Since the Petitioner’s reply was not found acceptable, a Show Cause Notice in Form GST DRC-01 dated 06.12.2023 was issued to the Petitioner. At this time, the Department has invoked Section 74 of the respective GST enactments. The Petitioner replied to the Show Cause Notice by a reply dated 04.01.2024. Pursuant to which, the Impugned Order has been passed under Section 74 of the respective GST Enactments on 03.02.2025.

7. By the Impugned Order, a sum of Rs.11,84,332/- has been confirmed as tax due from the Petitioner together with interest and penalty.

8. It is submitted by the learned counsel for the Petitioner that the invocation of machinery under Section 74 was a disguised. It is further submitted that the Respondent could have at best issued a Notice under Section 73 of the respective GST Enactments, within the time stipulated under the Act.

9. It is submitted that the Respondent had invoked Section 73 in the intimation dated 20.09.2023. Since the Petitioner objected the same on the ground of limitation, the Respondent had subsequently issued a Notice in Form GST DRC-01 dated 06.12.2023 by invoking Section 74 of the respective GST Enactments.

10. It is further submitted by the learned counsel for the Petitioner that absolutely, there is no case made out for invoking the jurisdiction under Section 74 of the respective GST Enactments. That apart, it is submitted that having invoked the jurisdiction under Section 73 while issuing intimation in Form GST DRC-01A, it is not open to the Respondent to invoke machinery under Section 74 at a later point of time, after the Petitioner filed an objection on 29.10.2023.

11. The learned Government Advocate for the Respondent, on the other hand, would submit that the question of limitation either under Section 73 or 74 of the respective GST Enactments would not apply in the facts of the case as the last date for passing orders fell during the time when the limitation was suspended due to outbreak of Covid-19. It is submitted that the limitation under Section 73 of the respective GST Enactments could not have expired on 31.12.2021.

12. It is further submitted that since there is a variation in the amount specified in the returns in GSTR-2A and GSTR-3B that the Petitioner had claimed excess Input Tax Credit in GSTR-3B as compared to GSTR-2A, the Department was justified in invoking machinery under Section 74 of the respective GST Enactments, although an intimation was earlier issued under Section 73 of the respective GST Enactments in Form GST DRC-01A on 20.09.2023.

13. In the reply, the learned Government Advocate for the Respondent would submit that after the Petitioner was issued with an Intimation in Form GST DRC-01A dated 20.09.2023, the Petitioner failed to give a reply on merits. Instead, the Petitioner by reply dated 29.10.2023 stated as under:-

Sir, I have already given detailed reply on 25.07.2023. Kindly drop the fu