2025 (6) TMI 345 - HC - GST

Issuance of summary of show cause notice without passing any order under Section 73 (1) of the AGST Act 2017 - opportunity of hearing also not provided - violation of principles of natural justice - HELD THAT - The decision in the case of Construction Catalysers Pvt. Ltd 2024 (10) TMI 279 - GAUHATI HIGH COURT is similar to the present case where it was held that This Court also cannot be unmindful of the fact that it is on account of certain technicalities and the manner in which the impugned orders were passed this Court interfered with the impugned orders and hence set aside and quashed the same. It is also relevant to take note of that the respondent authorities were under the impression that issuance of attachment of the determination of tax which was attached to the Summary of the Show Cause Notice would constitute a valid Show Cause Notice. Under such circumstances in the interest of justice this Court while setting aside the impugned Orders-in-Original as detailed out in the Appendix grants liberty to the respondent authorities to initiate de novo proceedings under Section 73 if deemed fit for the relevant financial year in question. The issue raised in Construction Catalysers Pvt. Ltd and the present petition is similar and therefore the determination made in Construction Catalysers Pvt. Ltd shall accordingly cover the present petition and as agreed to by the learned counsel for the parties the present writ petition stands disposed of by setting aside the summary of order dated 28.02.2025 and the summary of show cause notice dated 29.11.2024 in terms of the determination and conclusion arrived at para 29 of Construction Catalysers Pvt. Ltd.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Court are:

• Whether issuance of a Summary of Show Cause Notice (SCN) under the relevant GST provisions without issuance of a formal Show Cause Notice under Section 73(1) of the Assam Goods and Services Tax (AGST) Act, 2017, is legally valid.
• Whether the Summary of Show Cause Notice and the attached Statement of determination of tax under Section 73(3) can substitute the formal Show Cause Notice required under Section 73(1).
• Whether the proper procedural safeguards, including the opportunity of hearing as mandated under Section 75(4) of the AGST Act, were complied with before passing the impugned order.
• Whether the orders passed without adherence to the statutory procedure under Section 73 and Section 75(4) are liable to be quashed.
• Whether the respondent authorities can initiate fresh proceedings de novo after quashing the impugned orders.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Validity of Summary of Show Cause Notice without formal Show Cause Notice under Section 73(1)

Relevant Legal Framework and Precedents: Section 73(1) of the AGST Act, 2017, mandates issuance of a Show Cause Notice by the Proper Officer before initiating proceedings for recovery of tax not paid or short paid. The Central Goods and Services Tax (CGST) Act has parallel provisions. Section 73(3) requires issuance of a Statement of determination of tax. Rule 26(3) of the GST Rules, 2017, prescribes authentication requirements for notices and orders. The judgment in Construction Catalysers Pvt. Ltd. Vs. State of Assam and others (supra) is a binding precedent on this issue.

Court's Interpretation and Reasoning: The Court emphasized that the Summary of Show Cause Notice (GST DRC-01) is not a substitute for the formal Show Cause Notice mandated under Section 73(1). The formal Show Cause Notice is essential to trigger the proceedings under Section 73. The Statement of determination of tax under Section 73(3), which is attached to the Summary, cannot replace the requirement of issuing the Show Cause Notice.

Key Evidence and Findings: The petitioner contended that only a summary was issued without formal Show Cause Notice and no opportunity of hearing was granted. The Court found that the impugned order dated 28.02.2025 was passed without issuing the Show Cause Notice under Section 73(1).

Application of Law to Facts: The Court applied the statutory provisions and the precedent to hold that initiation of proceedings under Section 73 without issuance of the Show Cause Notice is bad in law.

Treatment of Competing Arguments: The respondent authorities argued that the Summary and attached Statement sufficed as notice. The Court rejected this, holding that statutory mandates cannot be bypassed by issuing summaries.

Conclusion: The impugned proceedings initiated without issuance of a formal Show Cause Notice under Section 73(1) are invalid.

Issue 2: Requirement of Opportunity of Hearing under Section 75(4)

Relevant Legal Framework and Precedents: Section 75(4) of the AGST Act requires that before passing an order, the person concerned must be given a reasonable opportunity of being heard. The precedent in Construction Catalysers Pvt. Ltd. established that failure to provide such opportunity vitiates the order.

Court's Interpretation and Reasoning: The Court observed that no opportunity of hearing was provided before passing the impugned order dated 28.02.2025. This procedural lapse violates Section 75(4).

Key Evidence and Findings: The petitioner's assertion that hearing was sought but denied was accepted. The Court noted this procedural deficiency as a ground for interference.

Application of Law to Facts: The Court applied the statutory requirement of hearing and found the impugned order contrary to the principles of natural justice.

Treatment of Competing Arguments: The respondent did not dispute the absence of hearing but relied on the Summary and Statement as sufficient. The Court held this insufficient.

Conclusion: The impugned order is liable to be quashed for violation of the hearing requirement under Section 75(4).

Issue 3: Authority and Authentication of Notices and Orders

Relevant Legal Framework and Precedents: Section 2(91) defines the Proper Officer who is competent to issue Show Cause Notices and pass orders under Section 73. Rule 26(3) mandates authentication of notices and orders. The Court in Construction Catalysers Pvt. Ltd. reiterated that only the Proper Officer can issue the Show Cause Notice, Statement, and pass orders.

Court's Interpretation and Reasoning: The Court held that the Summary notices and orders issued without authentication by the Proper Officer do not satisfy statutory requirements.

Key Evidence and Findings: The impugned Summary of Show Cause Notice and order were not issued by the Proper Officer as defined.

Application of Law to Facts: The Court found non-compliance with the statutory mandate on authority and authentication.

Treatment of Competing Arguments: The respondent's reliance on summary documents was rejected as inadequate.

Conclusion: The impugned documents are invalid for lack of proper authority and authentication.

Issue 4: Quashing of Impugned Orders and Liberty for Fresh Proceedings

Relevant Legal Framework and Precedents: The Court is empowered to quash orders passed in violation of statutory procedure but can grant liberty to initiate fresh proceedings. The precedent in Construction Catalysers Pvt. Ltd. supports this approach.

Court's Interpretation and Reasoning: The Court quashed the impugned orders for procedural lapses but allowed the respondent authorities to initiate de novo proceedings under Section 73 if deemed fit, excluding the period during which the invalid proceedings were pending from limitation calculation under Section 73(10).

Key Evidence and Findings: The Court noted the respondent authorities acted under a mistaken impression that the Summary and attached Statement constituted valid Show Cause Notice.

Application of Law to Facts: The Court balanced the need for procedural compliance with the interest of justice by permitting fresh proceedings.

Treatment of Competing Arguments: The petitioner sought complete quashing without liberty for fresh proceedings. The Court rejected this, emphasizing procedural rectification.

Conclusion: Impugned orders set aside; liberty granted for fresh proceedings excluding the impugned period from limitation.

3. SIGNIFICANT HOLDINGS

The Court, relying on the precedent in Construction Catalysers Pvt. Ltd., held:

"The Summary of the Show Cause Notice in GST DRC-01 is not a substitute to the Show Cause Notice to be issued in terms with Section 73 (1) of the Central Act as well as the State Act. Irrespective of issuance of the Summary of the Show Cause Notice, the Proper Officer has to issue a Show Cause Notice to put the provision of Section 73 into motion."

"The Show Cause Notice to be issued in terms with Section 73 (1) of the Central Act or State Act cannot be confused with the Statement of the determination of tax to be issued in terms with Section 73 (3) of the Central Act or the State Act."

"Initiation of the proceedings under Section 73 against the petitioners without the Show Cause Notice is bad in law and interfered with."

"The Show Cause Notice and the Statement in terms with Section 73 (1) and 73 (3) ... are required to be issued only by the Proper Officer as defined in Section 2 (91). Additionally, the order under Section 73 (9) is also required to be passed by the Proper officer."

"The issuance of the Summary of the Show Cause Notice, Summary of the Statement and Summary of the Order do not dispense with the requirement of issuance of a proper Show Cause Notice and Statement as well as passing of the Order as per the mandate of Section 73 by the Proper Officer."

"The Impugned Orders challenged in the writ petitions are in violation of Section 75 (4) as no opportunity of hearing was given."

"The impugned orders ... are set aside and quashed."

"Liberty is granted to the respondent authorities to initiate de novo proceedings under Section 73, if deemed fit for the relevant financial year in question."

"The period from the date of issuance the Summary of the Show Cause Notices ... till the date a certified copy of the instant judgment is served upon the Proper Officer, be excluded while computing the period prescribed for passing of the order under Section 73 (10)."

These principles firmly establish that procedural compliance with issuance of formal Show Cause Notice, proper authority,