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2025 (5) TMI 147 - HC - GSTCompliance of the Show cause notice with the statutory provision - Section 73 of the Central/West Bengal Goods and Services Tax Act 2017 - delay in uploading the demand in Form GST DRC-07 on the portal - rectification application under Section 161 - opportunity of hearing - HELD THAT - In this case it would be apparent from the above that a show cause had been issued and the petitioner did not respond to the said show cause within the time specified in the show cause. Having regard thereto I am of the view that the aforesaid contention raised by Mr. Ray in Court is an afterthought especially when the response to the show-cause was filed more than two months after the date for filing the response had expired. No explanation for the delayed response was noted in the rectification application. There appears to be no valid ground for invoking Section 161 of the said Act. The petitioner has an alternative remedy in the form of an appeal the petitioner however chose not to invoke such remedy and after more than a year from the date of passing of the order under Section 73 of the said Act the instant writ petition has been filed that too after more than a month from the date of the order of rejection of the rectification application. Although Mr. Ray would contend that the respondents had decided the petitioner s rectification application without giving an opportunity of hearing I am of the view that in the given facts the same cannot justify the petitioners belatedly approaching this Court. The petitioner cannot be permitted to frustrate the adjudicatory process as provided for in the scheme of the said Act. The writ petition fails and the same is accordingly dismissed.
1. ISSUES PRESENTED and CONSIDERED
The core legal questions considered by the Court include:
2. ISSUE-WISE DETAILED ANALYSIS Issue 1: Compliance of the Show Cause Notice with Statutory Provisions and Opportunity of Hearing Relevant Legal Framework and Precedents: Section 73 of the said Act governs the determination of tax not paid or short paid or erroneously refunded. The procedure mandates issuance of a show cause notice requiring the taxpayer to respond within a stipulated time. The principles of natural justice require that the taxpayer be given an opportunity of hearing before an adverse order is passed. Court's Interpretation and Reasoning: The Court noted that the show cause notice dated 8th September, 2023 called upon the petitioner to respond within 30 days. The respondents contended that the petitioner did not respond within the stipulated time, resulting in an ex parte order. The petitioner argued that the show cause notice did not specify a date for personal hearing and thus violated statutory requirements. Key Evidence and Findings: The petitioner's rectification application filed on 26th January, 2024 did not raise the issue of non-compliance with the show cause notice or lack of opportunity for hearing. The Court observed that the petitioner's contention regarding absence of hearing was an afterthought raised only during the writ proceedings. Application of Law to Facts: Since the petitioner failed to raise these grounds in the rectification application and delayed filing a response beyond the prescribed period without explanation, the Court found no valid ground to challenge the procedural compliance of the show cause notice. Treatment of Competing Arguments: The Court rejected the petitioner's argument that the show cause notice was defective and that no personal hearing was granted, emphasizing that the petitioner had an opportunity to respond and failed to do so timely. Conclusion: The show cause notice complied with statutory requirements, and the petitioner was afforded an opportunity to respond. The order passed ex parte was valid in the absence of timely response. Issue 2: Maintainability and Merits of the Rectification Application under Section 161 Relevant Legal Framework and Precedents: Section 161 of the said Act allows rectification of an order on grounds such as clerical mistakes or errors apparent on the face of the record. The rectification process is not intended to re-open substantive issues or permit delayed submissions. Court's Interpretation and Reasoning: The petitioner filed a rectification application on 26th January, 2024, contending that a detailed reply submitted earlier was not considered and that the audit report and payments made were ignored. The Court noted that the grounds raised in the rectification application did not include procedural defects or denial of hearing. Key Evidence and Findings: The petitioner's payment of tax, interest, and penalty based on the audit report was acknowledged, but the order impugned was passed without considering these facts. However, the rectification application failed to explain the delayed response or justify reopening the order. Application of Law to Facts: The Court held that the rectification application was not maintainable as a means to challenge substantive adjudication or to raise new grounds not previously asserted. The petitioner's failure to invoke the statutory appeal remedy further weakened the position. Treatment of Competing Arguments: While the petitioner argued that the respondents were duty-bound to consider the reply and audit report, the Court emphasized that the rectification provision was not intended for such purpose, especially after significant delay. Conclusion: The rectification application was rightly rejected, and no valid ground existed to invoke Section 161 to set aside the order. Issue 3: Effect of Delay in Uploading Demand in Form GST DRC-07 Relevant Legal Framework and Precedents: The issuance and uploading of demand orders are procedural steps; however, the validity of the order depends on compliance with substantive and procedural requirements under the said Act. Court's Interpretation and Reasoning: The respondents admitted a delay in uploading the demand on the portal due to workload but clarified that the order itself was passed earlier and was valid. Key Evidence and Findings: The order was passed on 14th December, 2023, whereas the demand was uploaded on 20th December, 2023. The Court found that the delay in uploading did not affect the validity of the order. Application of Law to Facts: The Court held that procedural delays in uploading do not invalidate the order passed under Section 73, provided the order itself is validly passed. Treatment of Competing Arguments: The petitioner did not specifically challenge this delay as a ground for invalidating the order. Conclusion: The delay in uploading the demand order on the portal does not affect the validity of the impugned order. Issue 4: Maintainability of the Writ Petition and Availability of Alternative Remedy Relevant Legal Framework and Precedents: The statutory scheme under the said Act provides for an appeal mechanism against orders passed under Section 73. Writ petitions are generally not entertained where an efficacious alternative remedy exists and is not exhausted. Court's Interpretation and Reasoning: The Court observed that the petitioner had an alternative remedy of appeal but chose not to invoke it. The writ petition was filed more than a year after the order was passed and after the rectification application was rejected. Key Evidence and Findings: The petitioner delayed approaching the Court and did not provide any explanation for the delay or failure to file an appeal. Application of Law to Facts: The Court emphasized that the petitioner cannot be permitted to frustrate the adjudicatory process by belatedly approaching the Court via a writ petition without exhausting the statutory appeal remedy. Treatment of Competing Arguments: The petitioner argued that the respondents did not provide an opportunity of hearing on the rectification application, but the Court found this insufficient to justify the delay and bypassing of the appeal remedy. Conclusion: The writ petition was not maintainable due to the availability of an alternative remedy and inordinate delay in approaching the Court. 3. SIGNIFICANT HOLDINGS The Court held:
Core principles established include the strict adherence to procedural timelines under the said Act, the limited scope of rectification under Section 161, and the necessity of exhausting statutory remedies before approaching the Court via writ petition. Final determinations on each issue were that the show cause notice and order were validly issued; the rectification application was not maintainable; procedural delays in uploading do not invalidate the order; and the writ petition was dismissed for non-exhaustion of alternative remedies and delay.
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