Calcutta HC: Penalising recipient without causing enquiry with supplier for tax non-remittance “illegal and without jurisdiction”.

Calcutta HC holds that to penalise the assessee (recipient) without causing enquiry with the supplier “would be arbitrary, illegal and without jurisdiction”, emphasizes “on the elementary principle” i.e. the necessity for the Department to conduct an inquiry with the supplier before penalizing the recipient by reversing ITC based on the allegation of non-remittance of tax by supplier to State exchequer; Allowing assessee’s appeal against the order passed in writ petition where the SCN was challenged, and the writ court initially issued directions without quashing the said SCN, HC remarks “decision in Suncraft…applies with full force to the case on hand.”; HC finds that Revenue authorities disregarded tax invoices and CA certificates produced by the assessee, opting instead to immediately proceed with reversal despite acknowledging that the assessee had already paid tax to the supplier; Therefore, having regard to CBIC press release dated May 4, 2018, HC set- aside order and directs the Department to first proceed against the supplier and proceed against assessee only under “exceptional circumstances”