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2023 (11) TMI 1205 - MADHYA PRADESH HIGH COURTValidity of SCN and subsequent order of demand issued u/s 73 of the Central Goods and Services Tax Act, 2017 - denial of reasonable opportunity arising from the fact that despite show cause notice dated 03.09.2022 (Annexure P/2) affording 30 days’ time for the petitioner to respond, the impugned order u/s. 73 was passed on 12.09.2022 i.e. within nine (9) days - not self-contained SCN - HELD THAT:- A bare perusal of show cause notice u/S. 73 of CGST Act reveals that the same was issued on 03.09.2022 affording opportunity to petitioner to make payment of tax with admissible penalty within 30 days. From the language employed in Section 73, it is obvious that Section 73(1) affords opportunity to noticee to show cause which means to respond as to why he should not pay the amount specified in the notice with interest and penalty, if any - Though no time period is stipulated in Section 73 for the noticee to respond but it is obvious that the statute contemplates affording of reasonable opportunity to reply to show cause notice. Thus, it is evident that the time gap provided between show cause notice dated 03.09.2022 (Annexure P/2) and impugned order dated 12.09.2022 (Annexure P/3) was only 8 clear days which in the considered opinion of this Court falls desperately short of satisfying the concept of reasonable opportunity of being heard. Another ground raised by counsel for petitioner is that the statement prescribed u/S. 73(2) has not been afforded to petitioner thereby keeping the petitioner in dark as regards the foundational material which persuaded the show cause notice issuing Authority to form a prima facie opinion against petitioner - From bare perusal of the impugned show cause notice (Annexure P/2) and order (Annexure P/3), it is not evident as to whether show cause notice was issued in cases covered by Section 73(1) or not - Thus, it would be appropriate to leave this aspect for the competent authority to decide it at its level. The third ground raised by the petitioner is that the impugned show cause notice (Annexure P/2) is not pregnant enough as regards foundational material to enable a reasonable opportunity to petitioner to respond effectively to the same. Meaning thereby that the impugned show cause notice is vague, sketchy and lacking in material particulars - In this regard, this Court merely observes that any show cause notice whether u/s. 73 or otherwise can withstand the test judicial scrutiny only when the same contains enough and adequate material which motivated the notice issuing Authority to take a prima facie view against the noticee. If the contents of impugned show cause notice are lacking in material particulars or are vague in regard to any of the entries contained therein then such show caused notice becomes vulnerable to judicial review. Thus, what comes out loud and clear is that the show cause notice not only falls short of the minimum period of 30 days to afford reasonable opportunity to noticee to respond but also appears to be lacking in material particular - impugned SCN set aside - petition allowed.
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