"But for the audit undertaken by the Department, the suppression of facts would have gone unnoticed" sounds so rhetoric when I read a class of SCNs!
Relying on the Apex Court's recent dictum in re: Tata Steel, the Hon'ble GSTAT Bengaluru DB, vide order dt. 15.9.26 in APL/10/BUR/2026, observed that:
- The extended period and penal provisions under Section 74 of CGST Act cannot be triggered by mechanically reciting statutory terms like "suppression" or "willful misstatement."
- SCN must explicitly set forth the underlying foundational facts demonstrating a conscious, deliberate device to evade tax. A failure to disclose foundational facts in the SCN is a jurisdictional defect that cannot be cured later.
- Proper Officer must record independent, subjective satisfaction based on concrete material. The mere existence of an audit observation under Section 65 or a CAG query does not automatically translate into "suppression" under Section 74.
- The finding of the Appellate Authority that "the contravention would have continued unabated but for the audit verification" misconstrues the legal definition of suppression. Routine audit discoveries under Section 65 do not automatically trigger extended limitation or penal provisions.
While none of these principles are new and have been emphasized by the Hon'ble Supreme Court in numerous decisions, they are routinely overlooked while penning the SCN. Beats what purpose is served by such rhetoric!