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2023 (12) TMI 943 - GAUHATI HIGH COURTRecovery of IGST - Validity of demand / show cause notice - Jurisdiction of CAG to issue notices / SCN - Conditions and procedure for issuance of SCN u/s 73(1) - HELD THAT:- Prior to issuance of a show cause notice under Section 73[1] of the CGST Act, 2017, it is mere discrepancy. At that stage, the alleged discrepancy would only be a discrepancy simplicitor but at the stage of issuance of Demand-cum-Show Cause Notice under Section 73[1] of the CGST Act, 2017, there is formation of a prima facie opinion on the part of the Proper Officer that there is an act, which is in violation of the statutory obligation cast on the noticee. Admittedly in the case in hand, the Form GST ASMT-10 was not issued to the petitioner. A contention has also been raised that the CAG is not the Proper Officer to issue any kind of letters regarding the discrepancy. This Court finds force in the contentions advanced by the petitioner that an act of issuance of the impugned Demand-cum-Show Cause Notice dated 05.09.2023 under Section 73[1] of the CGST Act, 2017 by the Proper Officer was without compliance of the mandatory conditions precedent, prescribed under the CGST Act, 2017 and the CGST Rules, 2017, more particularly, the provisions of Section 61 of the CGST Act, 2017 r/w Rule 99 of the CGST Rules, 2017, to derive jurisdiction to issue such a Demand-cum- Show Cause Notice under Section 73[1] of the CGST Act, 2017, impugned herein. Thus, it is ordered that the operation of the impugned Demand-cum-Show Cause Notice shall remain stayed, till the returnable date.
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