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GST – Section 74(5) - Refund claim of amount paid voluntarily during investigation - Determination of issue whether the products sold by petitioners are branded or unbranded - Revenue stand that the remittances made by the petitioner during investigation in terms of Section 74(5) amount to ‘self-ascertainment’ and having remitted two instalments of the tax as per its own ascertainment, petitioner cannot seek refund of the amount – meaning of term ‘ascertainment’ if tax liability - HELD - Section 74(5) is not a statutory sanction for advance tax payment, pending final determination in assessment – Revenue argument is contrary to the scheme of assessment under Section 74 - The ratio of the decisions that no collection can be insisted upon prior to a final determination of liability being made, still hold the field - Section 74(5) provides for first opportunity to an assessee to pay tax, interest and penalty liability even prior to the issuance of a show cause notice and such acceptance will have to be in the form of either self-ascertainment or an ascertainment by the proper officer - Merely because an assessee has, under the stress of investigation, signed a statement admitting tax liability and has also made a few payments as per the statement, cannot lead to self-assessment or self-ascertainment - The ascertainment contemplated under Section 74(5) is of the nature of self-assessment and amounts to a determination which is unconditional, and not one that is retracted as in the present case – revenue’s understanding and application of Section 74(5) in this case, is wholly misconceived - The amount collected shall be refunded to the petitioner within a period of four weeks - The Writ Petition is allowed - Whether there was an ascertainment in this case - The records revealed the tabulation of instalments furnished by the assessee at the time of recording of statement and out of which the first two instalments have been paid. These, according to Revenue constitute self-ascertainment and trigger the provisions of Section 74(5) and (7). Had this been the position, the records must contain material to show that (i) the assessee accepts the ascertainment made by it, (ii) the revenue has applied its mind and arrived at the position that the self-ascertainment by the assessee is inadequate and (iii) An ascertainment by the officer, as in the tabulation of payments, the balance tax liability, after taking note of the amount of Rupees Seven Crores to be paid by the petitioner, is to be made by the officer. However, statement recorded at the time of search admitting GST liability and setting the scheme of instalments have been retracted by the petitioner and the petitioner has consistently and vehemently been contested the liability to tax. Importantly, the records also do not contain any ascertainment by the officer. The tabulation of payments in this case is joint, the petitioner offering a sum of Rupees Seven Crores (since retracted) and the Officer to ascertain the balance. This exercise has not been carried out and, with this, the requirement of ‘ascertainment’ under Section 74(5), fails
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