The Karnataka High Court, in M/s Kesar
Colour Chem Industries v. The Intelligence Officer & Ors., examined the
legality of recovery of tax amounts during the course of investigation under
the Central Goods and Services Tax Act, 2017, prior to the issuance of a show
cause notice. The petitioner challenged the recovery of a sum of ₹2.50 crore
collected by the departmental authorities during investigation proceedings,
contending that the amount was paid under coercion and not pursuant to
voluntary self-ascertainment as contemplated under Section 74(5) of the CGST
Act.
The petitioner submitted that the recovery
was effected before any determination of liability through adjudication and
before issuance of a show cause notice. It was contended that Section 74(5)
permits payment of tax only where the assessee, on its own volition,
self-ascertains the tax liability and voluntarily discharges the same. In the
present case, the payment was allegedly extracted during investigation through
summons and pressure, thereby lacking the essential element of voluntariness.
The respondents argued that the amounts
were paid voluntarily by the petitioner and were duly reflected through forms
such as DRC-03, asserting that the payment amounted to self-ascertainment under
Section 74(5). They contended that the petitioner had cooperated during
investigation and had willingly discharged the liability.
The High Court rejected the stand of the
department and held that self-ascertainment under Section 74(5) necessarily
presupposes a voluntary and independent determination of tax liability by the
assessee. The Court observed that the subsequent issuance of a detailed show
cause notice itself demonstrated that the tax liability had not been
self-ascertained and that adjudication was still pending. This contradicted the
department’s claim that the payment was voluntary.
The Court further held that any recovery of
tax prior to adjudication, without authority of law and without following the
statutory procedure, violates Article 265 of the Constitution of India, which
mandates that no tax shall be levied or collected except by authority of law.
Recoveries made during investigation, in the absence of voluntary
self-ascertainment and prior to issuance of a show cause notice, were therefore
declared illegal.
Accordingly, the Karnataka High Court
directed the respondents to refund the amount of ₹2.50 crore recovered from the
petitioner, along with applicable interest. The Court clarified that its
findings were confined to the legality of the recovery and would not prejudice
the adjudication proceedings initiated pursuant to the show cause notice, which
were left open to be decided in accordance with law.
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