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Dated: /08/2024
/Bhavya Enterprises/270/2024-25
DL-GST/West/ Roh /fech/Adj

DIN:
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gh, Deputy Commissioner, Central Tax, Delhi We
1. Passed by Sh. Vijay Sin
Commissionerate.

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Th e appeal

Mis BHAVYA ENTERPRISES

·os TIN : 07AAKPG3214C1ZB
, MANGLAM PALACE,
G-13, N.N.MALL, PLOT N0.15
st Delhi, Delhi, 110085
SECTOR-3, ROHINI, North We
 Brief facts of the case:-

Mis BHAVYA ENTERPRISES (Legal Name: POONAM GUPTA

) having principal
place of business at 0-13, N.N.MALL, PLOT NO.IS, MANOLAM
ROHINI, North West Delhi, Delhi, 110085 (hereinafter referred PALACE, ~EC;OR-~,
to as 'the taxpayer or party )
is registered with OST department vide OSTIN 07AAKPG3214C
lZB under Section 22 of
COST Act, 2017. The taxpayer by obtaining the said registration
had undertaken. to comply
with the provisions of COST Act, 2017, IGST Act, 2017 and SGST

I referred to as 'the said Act(s)', read with the COST Rules, 2017,
Rules, 2017 [hereinafter also referred to as 'the said Rules'].
Act, 2017 (heremafter also
IOST Rules 2017 and SOST

Section-16 (4) of the CGST Act, 2017 .

2. As per Section 16(4) of the CGST Act, 2017 as amended, a

registered person shall not be
entitled to take input tax credit in respect of any invoice or
debit note for supply of goods or
services or both after the due date offurnishing of the return
under Section 39 for the month of
September following the end offinancial year to which such
invoice or invoice relating to such
debit note pertains or furnishing of the relevant annual return
, whichever is earlier.
3. The due date for claiming ITC pertaining to Financial Year
2019-20 was on or before
24.10.2020, which was the due date for filing GSTR-3B for
the month of September 2020 and the
due date for filing Annual return (OSTR-9) was on 31.03
.2021. Hence, the earlier date i.e.
24.10.2020 was the due date for availing ITC for the year 2019-
20. In the present case, it appears
that the OSTR 3B return for the period 2019-20 involving
ITC amounting to Rs. 43,87,280.40/-
was filed after the said due date. Thus, the ITC amounting
to Rs. 43,87,280.40/- appears to be
inadmissible, therefore, the party had contravened the above
-mentioned section 16(4) of the COST
Act, 2017 and ITC amounting to Rs. 43,87,280.40/- availed
and utilized by the party for the period
2019-20 in terms of section 16(4) became ineligible.

4. Whereas, ITC of Rs. 43,87,280.40/- availed by the taxpayer

for the tax period 2019-20 was time barred as the taxpayer in the OSTR-3B return filed
had filed the said returns after the due
date for claµning ITC pertaining to Financial Year 2019-20
and thus the same became ineligible
as per the provision of Section 16(4) of the COST Act 2017
made applicable to IOST vide Section
20 of the IOST Act, 2017 and Section 16 (4) SOST Act 2017.
Therefore, it appears that, the same
is required to be demanded in terms of Section 73 of the COST
Act, 2017 read with Rule 142(1)
of the CGST Rules, 2017 along with applicable interest
under Section 50 of the CGST Act
respectively for contravening the provisions of Section 16(4) '
of the CGST Act, 2017.
5. The Taxpayer was informed vide this office 06.05.2024 that
the said ITC was ineligible
and was informed to reverse the same alongwith applicable
Interest. However, the taxpayer had
not replied. Hence, the ineligible ITC of Rs. 43,87,280.40/-
so availe
16(4) of the COST Act, 2017 is liable for demand under Sectio d in contravention to Section
n 73(1) of the COST Act, 2017
along with applicable interest. The party was also liable for
penalty as provided under Section
73(1) of the COST Act, 2017 read with Section 122(2)(a) ofthe
CGST Act, 2017.
Section 73 (1) of the CG ST Act, 201
7 emphasized as: -
6. As per Section 73 (1) of the COST Act
2017, where it appears to the proper
any tax has not been paid or short pai ofjicde~tth
d or '
e"o neously refunded, or where mpu • t tax ere i hasat
been wrongly availed or utilized for any 'llful-
reason, other than the reason offrau
misstatement or suppression offacts to d or any wi bl
evade tax, he shall serve not~ce on the
with tax which has not been so paid or person ch~ ;;fh e
which has been so short paid or to who
e"oneously been made, or who has wro m the_ r~JK . as
ngly availed or utilized i~put tax c~edit,
show cause as to why he should not pay requi~mg_ him t~
the amount specified m the notice alon
payable thereon under Section 50 and g with mteres
a penalty leviable under the provisions
rules made thereunder. of this Act or the

Section 50(3) of the CGST Act, 201

7, emphasized as:-
7. As per Section 50(3) of the COST Act
, 2017, where the input tax credit has
availed and utilised, the registered pers been wrongly
on shall pay interest on such input tax
availed and utilized, at such rate not credit wrongly
exceeding twenty-four per cent. as may
Government, on the recommendations be notified by the
of the Council, and the interest shall be
manner as may be prescribed. calculated, in such

8. In view of the above, the ITC amounti

ng to Rs. 43,87,280.40/- had wrongly
contravention of Section 16(4) ofthe CGS availed in
T Act 2017 and liable to be recovered
73(1) of the CGST Act, 2017 along with in terms of Section
due interest as specified under Section
They are also liable for penalty under 50 (3) of the Act.
Section 73 (1) of the CGST Act, 2017.
9. Now, therefore, Mis BRAVY A ENT
principal place of business at G-13, ERPRISES (Legal Name: Poonam Gup
N.N.MALL, PLOT NO.15, MANGL ta) having
ROHINI, North West Delhi, Delhi, 1100 AM PALACE, SECTOR-3,
85, was
Commissioner, CGST Rohini Divisio th hereby called upon to show cause to the, Deputy
n, 4 Floor, Ambedkar Bhawan, Sec
110085, the adjudicating authority, as.to tor-16, Rohini, Delhi-
why;
(i) Ineligible ITC of Rs. 43,87,280.40
/- availed in contravention of Section 16(4
Act, 2017 during the period from April, ) ofthe CGST
2019 to March, 2020 should not be dem
them under Section 73 of CGST Act, anded from
2017.
(ii) Interest as applicable should not be
demanded and recovered from them und
ofCGST/SGST Act, 2017 read with sect ersection 73(1)
ion 50(3) of the COST Act, 2017, and
2017 and Section 20 of the IGST Act SGST Act,
, 2017 on the amount demanded at S.
No (i) above.
(iii)Penalty should not be imposed on
them und
with Section 122(2)(a) of the CGST/SGS er Section 73(9) of the CGST Act, 2017 read
T Act, Section 20 ofIGST Act, 2017.
Reply of the assesse to the SCN

10. The assessee did not file any writ

ten reply to the show cause notice.

Per son al Hearing

11. The taxpayer was granted an opportu

nity to be heard in person on 12.08.20
Online PH was also given via GSTBO 24 and 20.08.2024.
. PH letters were sent to the taxpayer
address via registered
pos~ however' ~~ letters returned
undelivered. PH letter was also sen
registered email id, but all in vain, t electronic~lly on taxpayer
no reply has been received from tax
payer end till date.
Discussion and finding

12. l have carefully gone through

the facts of the entire case as bro
notice and the material available ught out in the show cause
on records. As per records, no wri
Notice was filed by the party. The tten reply to the Show Cause
party or their authorized representa
me either for personal hearing in tive did not_ appear before
the case on the dates fixed for the
Notice, therefore, has to be decided purpose. This show Cause
ex-parte. In this regard, I rely upo
India Ltd. Vs. Union of India- 200 n the case of Ml~. S_aketh
2(143)ELT 274(Del.) of the Hon'b
held that:- le Tribunal, wherein, it was

"thus it is a clear case where a proper

opportunity was given to the appella
notice and to make oral submission nt to reply_to sho_w c~~se
, if any. However, fault lies with the
of these opportunities. For this app appellant in not availing
ellant has to blame itself. The appella
blame the respondents by alleging nt cannot tum around and
that the ADDL DGFf violated prin
did not give sufficient opportunity ciples of natural justice or
to the appellant to present its case."
13. I also find that, Hon'ble Trib
unal in the case of V.K. Thampi
ELT424(Tri.), relying on the decisio Vs. CCE, Cochin-1988(33)
n of the Apex Court reported in (AI
1957 SC 842) held that an adjudica R 1962 SC 646 and AIR
ting authority was entitled to procee
concerned did not appear before it, d ex-parte if the person
in response to Notice issued by it. The
that the Noticee, by their actions, hav refo
e forfeited their rights to be heard and re, I am of the view
of inclination to ~present the case. I
I, therefore, proceed to decide the issu have also shown lack
records. e on the basis of available

14. Therefore, I now take up the case for

its logical conclusi~n. The dispute
before me is:
(a) Whether, the party had availed
ineligib
Section 16(4) of the CGST Act, 201 le ITC of Rs. 43,87,280.40/- in contravention of
7 during the period from April, 201
should be demanded from them und 9 to
er Section 73 of CGST Act, 2017 and March, 2020
read with Section 20 of the IGST Act SGST Act, 2017
(b) Whether, Interest as applica
, 2017.
ble should
the provision of section 73(1) of CG be demanded and recovered from the party under
ST/SGST Act, 2017 read with sec
CGST Act, 2017, and SGST Act, 201 tion
7 and Section 20 ofthe IGST Act, 201 50(3) of the
demanded at S. No (i) above. 7 on the amount
(c) Whether the Penalty should be
imposed
of the CGST Act, 2017 read with Sec on the party under the provision of Section 73(9)
tion 122(2)(a) of the CGST/SGST Act
IGST Act, 2017. , Section 20 of

15. The present show cause notice

Rs. 43,87,280.40/- in contravention is concerned that the taxpayer has availed Ineligible ITC of
of Section 16(4) of the COST Act, 2017 during the per
from April, 2019 to March, 2020. iod
16. In the instant case, neither the not
personal hearing, further, they did icee nor their representative appeare
not provide/submit any written sub d before me for
mission in their defence.
17. In this regard, I have gone through
written submission of the assessee all the proceedings of the pre
and I have found that nothing adverse sent case without the
had been noticed, all the facts of the in the show cause notice
matter in the show cause notice is as
per the GST law.
18 Furth •
Ta~ Act, 2o~j m a~c:dance with ~he ~rovi~ions of Section 16 of 1G d and Services
the Centraf ro°d~:ct Taxes and
' an t e extant gu1dehnes issued by the Central Board O
CustoI?s (CBIC? with regard to the scrutiny of returns, it has a er
been established that thet: pi:ie.
has UOJU~tl~ claime~ Input Tax Credit of Rs. 43,87,280.40/- to which
As such, it is detennmed that the aforementioned sum being the wrong the party was no . a;ailed
ful Input Tax Credit
?Y the taxpayer, ~long with applicable rate of interest ~d penalty, is recove rable from the taxpayer
m accordance with the provisions of the said Act.

~9. Ther~fore, in view of above, I have found that the amount

of Rs. 43,87,280.40/- is_ ~ghtl~
mvoked in the show cause notice and the party is liable to reverse
section-73 of the CGST Act, 2017 along with applicable interes
the same under the provision °
t and penalty Invoked u~d~r
Section_-50 of the CGST Act, 2017 and Section-73(1) read with
respectively.. section 12.2(2)(a) of the Act ibid

In view of aforesaid discussion and fmding, I order as under: -

ORDER
1. I confirm the demand and recovery of wrongly availment and utiliza
tion of ITC of Rs.
43,87,280.40/-(IGST-Rs. 0/-, CGST - Rs. 21,93,640.20/- &
SGS T- Rs. 21,93,640.20/-)
from Mis BHAVYA ENTERPRISES (Legal Name: Poonam Gupta) under
Section 73(1) of the
CGST Act, 2017 and DGST Act, 2017 read with Section 20 of IGST
Act, 2017.
2. I confirm the demand and recovery of interest on the amount mentio
provisions of Section 50(3) ofCGST Act, 2017 and DGST Act, 2017 ned above under the
read with section 20 ofIGST
Act, 2017 and order for recovery of the same from them.

3. I impose and order for recovery of penalty of Rs.4,38,728/

- upon Mis BHAVYA
ENTERPRISES under Section-73(9) of the CGST Act, 2017 read
said act. with section 122(2)(a) of the

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To,
Mis BHAVYA ENTERPRISES
GSTIN: 07AAKPG3214CIZB
G-13, N.N.MALL, PLOTNO.15, MANGLAM PALACE,
SECTOR-3, ROHINI, North West Delhi, Delhi, 110085
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