TMI Blog2023 (7) TMI 1011X X X X Extracts X X X X X X X X Extracts X X X X ..... hout even striking out any relevant portion and without stating clear contraventions committed by the petitioner, will not substitute the requirement of proper show cause notice. Hon'ble Apex Court in DILIP N. SHROFF VERSUS JOINT COMMISSIONER OF INCOME-TAX AND ANOTHER [ 2007 (5) TMI 198 - SUPREME COURT ], has also observed that expression in Section 73/74 of the Act, 2017 appears to be proper officer is not to a casual act but should show the full application of mind by proper officer. From the perusal of the impugned notice, it is clear that it contains necessary details and grounds, which are the basis for issuing the same. Still, at the tail end of the impugned notice, instead of seeking a reply on the allegation mentioned in the impugned show cause notice issued under Section 74 (1) of the Act, 2017, petitioner was directed to reply with regard to the tax and penalty and it was stated that if no reply was furnished then order under Section 74(9) of the Act, 2017 would be passed. Therefore, the impugned notice because of the facts mentioned in the earlier part of the notice cannot be said to be patently illegal, being without jurisdiction. Therefore, there is no ground for q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e purchased by the petitioner from M/s Raghav Enterprises and, therefore, the Input Tax Credit which the petitioner had claimed was in accordance with law. 4. To substantiate his point, Sri Aloke Kumar, learned counsel for the petitioner, heavily relied upon the judgement and order dated 06.10.2021 passed in W.P. (T) No. 2444 of 2021 (M/s Nkas Services Private Limited Vs. State of Jharkhand Others) of the High Court of Jharkhand at Ranchi. 5. Sri Ankur Agarwal, learned counsel appearing for respondent nos.1 2 and Sri Gopal Verma, learned counsel for respondent no.3, essentially made their submissions relying upon Section-74 of the Uttar Pradesh Goods And Services Tax Act, 2017 (hereinafter referred to as the 'Act, 2017'). Relying upon Section 74 (1) of the Act 2017, learned counsel for the respondents stated that the proper officer had yet to conclude to initiate the proceedings. If only it appeared to the proper officer that tax had not been paid or short paid or erroneously refunded or where Input Tax Credit had been wrongly availed or utilized by reason of fraud or any wilful statement or suppression of fact, the proceeding could be initiated. 6. Sri Ankur Agarwal, learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nos.21 and 22 of the Apex Court judgement in Gorkha Security Services Vs. Government (NCT of Delhi) (supra) are being quoted as below: 21. The central issue, however, pertains to the requirement of stating the action which is proposed to be taken. The fundamental purpose behind the serving of show cause notice is to make the noticee understand the precise case set up against him, which he has to meet. This would require the statement of imputations detailing the alleged breaches and defaults he has committed so that he gets an opportunity to rebut the same. Another requirement, according to us, is the nature of action which is proposed to be taken for such a breach. That should also be stated so that the noticee is able to point out that proposed action is not warranted in the given case, even if the defaults/breaches complained of are not satisfactorily explained. When it comes to blacklisting, this requirement becomes all the more imperative, considering that it is harshest possible action. 22. The High Court has simply stated that the purpose of a show cause notice is primarily to enable the noticee to meet the grounds on which the action is proposed against him. No doubt, the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present case also. 26. S.R. Das, CJ speaking for the unanimous Constitution Bench in Khem Chand held that the concept of `reasonable opportunity' includes various safeguards and one of them, in the words of the learned Chief Justice, is: (a) An opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based; 27. It is no doubt true that at the stage of show cause, the person proceeded against must be told the charges against him so that he can take his defence and prove his innocence. It is obvious that at that stage, the authority issuing the charge- sheet cannot, instead of telling him the charges, confront him with definite conclusions of his alleged guilt. If that is done, as has been done in this instant case, the entire proceeding initiated by the show cause notice gets vitiated by unfairness and bias and the subsequent proceeding becomes an idle ceremony. 10. Therefore, from the law laid down by the Apex Court in the judgement mentioned above, it is clear that requirement of principles of natural justice by a show cause notice can only be met if: (I ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
