TMI Blog2021 (10) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... hich necessarily needs to be adhered to,if prejudice is to be eliminated in the case on hand. In other words, it is not a mere procedural requirement but on the facts and circumstances of this case, it becomes clear that it tantamount to trampling the rights of writ petitioner. The impugned order is set aside, solely on the ground of non adherence to Rule 142 of the CG ST Rules, 2017 and all other procedural requirements - As the impugned order is set aside solely on the ground Rule 142 of CG ST Act, 2017, though obvious it is made clear that no view or opinion on the merits of the matter have been expressed in the instant order - petition disposed off. - W.P.No.19756 of 2021 And W.M.P.No.21034 of 2021 - - - Dated:- 21-9-2021 - Hon& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... main writ petition was taken up. 7. Responding to the aforementioned two points raised by the learned counsel for writ petitioner, learned Revenue counsel on instructions submitted that personal hearing has in fact been held and that the records demonstrate that personal hearing was held on 09.07.2021. This douses this first point urged. 8. Be that as it may, learned Revenue counsel on instructions submits that the records do not demonstrate that FORM GST DRC-01 and FORM GST DRC-01A preceded the impugned order. 9. By way of reply, learned counsel for writ petitioner reiterated his second point i.e., procedure proceeding impugned order not been informed. 10. I carefully considered the submissions made by either side and f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of sub-section (5) of section 74, or where any person makes payment of tax, interest, penalty or any other amount due in accordance with the provisions of the Act [whether on his own ascertainment or, as communicated by the proper officer under sub-rule (1A),] he shall inform the proper officer of such payment in FORM GST DRC-03 and the proper officer shall issue an acknowledgement, accepting the payment made by the said person in FORM GST DRC 04. [(2A) Where the person referred to in sub-rule (1A) has made partial payment of the amount communicated to him or desires to file any submissions against the proposed liability, he may make such submission in Part B of FORM GST DRC-01A.] (3) Where the person chargeable with tax mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of section 161 or where an order uploaded on the system has been withdrawn, a summary of the rectification order or of the withdrawal order shall be uploaded electronically by the proper officer in FORM GST DRC-08.]' 11. Section 73 of CG ST Act reads as follows: '73. Determination of tax not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilised for any reason other than fraud or any wilful misstatement or suppression of facts (1) Where it appears to the proper officer that any tax has not been paid or short paid or erroneously refunded, or where input tax credit has been wrongly availed or utilised for any reason, other that the reason of fraud or any wilful mis sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer and inform the proper officer in writing of such payment. (6) The proper officer, on receipt of such information, shall not serve any notice under sub-section (1) or, as the case may be, the statement under sub-section (3), in respect of the tax so paid or any penalty payable under the provisions of this Act or the rules made thereunder. (7) Where the proper officer is of the opinion that the amount paid under sub-section(5) falls short of the amount actually payable, he shall proceed to issue the notice as provided for in sub-section (1) in respect of such amount which falls short of the amount actually payable. (8) Where any person chargeable with tax under subsection (1) or sub-section (3) pays the said tax along ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he facts and circumstances of this case, it becomes clear that it tantamount to trampling the rights of writ petitioner. 13. In the light of the narrative thus far, the following order is passed: (a) The impugned order dated 25.08.2021 bearing reference No.GST-01/2018-19, is set aside, solely on the ground of non adherence to Rule 142 of the CG ST Rules, 2017 and all other procedural requirements; (b) As the impugned order is set aside solely on the ground Rule 142 of CG ST Act, 2017, though obvious it is made clear that no view or opinion on the merits of the matter have been expressed in the instant order; (c) As sequitur, the respondent shall commence proceedings afresh i.e., de-novo and complete the exercise by adher ..... X X X X Extracts X X X X X X X X Extracts X X X X
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