2025 (5) TMI 144 - HC - GST

Validity of issuance of a Summary of Show Cause Notice (GST DRC-01) without issuance of a formal Show Cause Notice under Section 73(1) of the Central Goods and Services Tax Act 2017 (CGST Act) - HELD THAT - The issue raised in Construction Catalysers Pvt. Ltd. 2024 (10) TMI 279 - GAUHATI HIGH COURT and the present petition is similar and therefore the determination made in Construction Catalysers Pvt. Ltd (supra) 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 impugned order dated 28.04.2024 and the summary of show cause notice dated 13.12.2023 in terms of the determination and conclusion arrived at para 29 of Construction Catalysers Pvt. Ltd (supra).

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Court are:

• Whether the issuance of a Summary of Show Cause Notice (GST DRC-01) without issuance of a formal Show Cause Notice under Section 73(1) of the Central Goods and Services Tax Act, 2017 (CGST Act) is legally valid.
• Whether the Statement of determination of tax under Section 73(3) can substitute the requirement of issuance of a Show Cause Notice under Section 73(1).
• Whether the proper procedure, including issuance of Show Cause Notice, Statement of determination, and opportunity of hearing, as mandated by Sections 73 and 75(4) of the CGST Act, has been complied with.
• Whether the impugned orders passed without giving an opportunity of hearing violate the principles of natural justice and statutory requirements.
• The legal effect and consequences of issuing only summary documents (Summary of Show Cause Notice, Summary of Statement, Summary of Order) in GST DRC forms without proper issuance and authentication by the Proper Officer as defined under the CGST Act.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Validity of Summary of Show Cause Notice as a substitute for Show Cause Notice under Section 73(1)

Relevant legal framework and precedents: Section 73(1) of the CGST Act requires issuance of a Show Cause Notice by the Proper Officer before initiating recovery proceedings for tax not paid or short paid. The GST Rules, 2017, particularly Rule 26(3), prescribe authentication requirements for such notices. The Court relied heavily on the earlier judgment in Construction Catalysers Pvt. Ltd., which dealt with identical issues.

Court's interpretation and reasoning: The Court emphasized that the Summary of Show Cause Notice in GST DRC-01 is not a substitute for the formal Show Cause Notice mandated under Section 73(1). The Summary document is merely a procedural formality and does not activate the provisions of Section 73. The Proper Officer must issue a formal Show Cause Notice to commence proceedings.

Key evidence and findings: The petitioner's grievance was that no formal Show Cause Notice was issued, only a summary. The Court found that the respondent authorities mistakenly treated the summary as a valid Show Cause Notice, which is legally incorrect.

Application of law to facts: Since the impugned order was passed without issuance of a formal Show Cause Notice, the initiation of proceedings under Section 73 was held to be invalid.

Treatment of competing arguments: The respondents conceded that the issue was similar to the one in Construction Catalysers and did not dispute the necessity of a formal Show Cause Notice. The Court accepted this concession and applied the precedent accordingly.

Conclusion: The Summary of Show Cause Notice cannot substitute the formal Show Cause Notice under Section 73(1). The impugned order passed without such notice is bad in law and liable to be quashed.

Issue 2: Distinction between Show Cause Notice under Section 73(1) and Statement of determination under Section 73(3)

Relevant legal framework and precedents: Section 73(3) requires the issuance of a Statement of determination of tax after considering the reply to the Show Cause Notice. The Court referred to the statutory scheme distinguishing the two documents.

Court's interpretation and reasoning: The Court clarified that the Statement of determination of tax under Section 73(3) is distinct and cannot replace the Show Cause Notice under Section 73(1). The Statement is issued after the Show Cause Notice and after hearing the party.

Key evidence and findings: The attachment to the Summary of Show Cause Notice was only the Statement of determination of tax. This was insufficient to comply with Section 73(1).

Application of law to facts: Since the Statement was issued without a prior Show Cause Notice, the procedural requirement was violated.

Treatment of competing arguments: No contrary legal argument was advanced; the Court reaffirmed the statutory sequence and procedural safeguards.

Conclusion: The Statement of determination cannot substitute the Show Cause Notice. Proper issuance of both documents by the Proper Officer is mandatory.

Issue 3: Compliance with procedural requirements including opportunity of hearing under Section 75(4)

Relevant legal framework and precedents: Section 75(4) of the CGST Act mandates that the person against whom an order is proposed must be given an opportunity of being heard. The Court relied on this statutory safeguard and prior rulings emphasizing natural justice.

Court's interpretation and reasoning: The Court found that the impugned orders were passed without giving the petitioner an opportunity of hearing, violating Section 75(4) and principles of natural justice.

Key evidence and findings: The petitioner's claim of being denied hearing was undisputed. The Court noted this procedural lapse as fatal.

Application of law to facts: The absence of hearing rendered the impugned orders invalid.

Treatment of competing arguments: The respondents did not contest the absence of hearing but relied on the summary documents. The Court rejected this justification.

Conclusion: Orders passed without opportunity of hearing violate Section 75(4) and are liable to be quashed.

Issue 4: Requirement of issuance and authentication by Proper Officer

Relevant legal framework and precedents: Section 2(91) defines the Proper Officer authorized to issue notices and pass orders under the CGST Act. Rule 26(3) requires authentication of notices and orders by the Proper Officer. The Court referred to these provisions and prior case law emphasizing strict compliance.

Court's interpretation and reasoning: The Court held that issuance of summary documents in GST DRC-01, DRC-02, and DRC-07 forms does not dispense with the requirement of issuance of proper notices and orders by the Proper Officer with authentication. This is essential as these proceedings have significant consequences.

Key evidence and findings: The impugned summary documents lacked proper authentication and formal issuance by the Proper Officer.

Application of law to facts: The procedural irregularity vitiated the impugned orders.

Treatment of competing arguments: The respondents' reliance on summary documents was rejected as insufficient compliance with the statutory scheme.

Conclusion: Proper issuance and authentication by the Proper Officer is mandatory; summary documents alone are inadequate.

Issue 5: Consequences of procedural lapses and directions for fresh proceedings

Relevant legal framework and precedents: The Court referred to principles of justice and procedural fairness, allowing re-initiation of proceedings de novo where procedural lapses occurred.

Court's interpretation and reasoning: The Court acknowledged that the impugned orders were set aside due to technical and procedural irregularities, not on merits of tax liability. It granted liberty to the authorities to initiate fresh proceedings under Section 73, if deemed fit, for the relevant financial year.

Key evidence and findings: The authorities had acted under a mistaken impression that summary documents sufficed as valid Show Cause Notices.

Application of law to facts: The Court excluded the period from issuance of summary notices till service of the certified judgment copy from limitation computation under Section 73(10), allowing fresh proceedings without prejudice.

Treatment of competing arguments: The Court balanced the interests of justice by quashing invalid orders but permitting re-initiation.

Conclusion: Impugned orders are quashed; fresh proceedings may be initiated in compliance with statutory requirements and procedural safeguards.

3. SIGNIFICANT HOLDINGS

The Court's crucial legal reasoning is preserved verbatim from para 29 of the Construction Catalysers judgment, which governs the present case:

"(A) 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.

(B) 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. In the instant writ petitions, the attachment to the Summary of Show Cause Notice in GST DRC-01 is only the Statement of the determination of tax in terms with Section 73 (3). The said Statement of determination of tax cannot substitute the requirement for issuance of the Show Cause Notice by the Proper Officer in terms with Section 73 (1) of the Central or the State Act. Under such circumstances, initiation of the proceedings under Section 73 against the petitioners