TMI Blog2022 (2) TMI 1157X X X X Extracts X X X X X X X X Extracts X X X X ..... completed during the above mentioned period April 2020 to March 2021 whereas the liability reflected by him through filed returns is less than the above mentioned sum as per GSTR-3B. As such, he was not reflecting the total payment received and consequent total liability accrued in the filed returns just to evade payment of due tax to the government. It needs to be mentioned here that even the summary of the show cause notice does not disclose the information as received from the headquarter / government treasury as to against which works contract service completed or partly completed the petitioner has not disclosed its liability in the returns filed under GSTR-3B. The show cause notice is completely silent on the violation or contravention alleged to have been done by the petitioner regarding which he has to defend himself. The summary of show cause notice at annexure-2 though cannot be a substitute to a show cause notice, also fails to describe the necessary facts which could give an inkling as to the contravention done by the petitioner - It needs no reiteration that a summary of show cause notice in Form DRC-01 could not substitute the requirement of a proper show cause not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laim by the date mentioned You may appear before the undersigned for personal hearing either in person or through authorized representative for representing your case on the date, time and venue, if mentioned in table below. Please Note that besides tax, you are also liable to pay interest and penalty in accordance with the provisions of the Act. If you make payment of tax stated above along with up to date interest within 30 days of the issue of this notice with applicable penalty then proceeding may be deemed to have been concluded. Details of personal hearing etc. Sr. No. Description Particulars 1. Section under which show cause notice/statement is issued 73 2. Date by which reply has to be submitted 14/07/2021 3. Date of personal hearing NA 4. Time of personal hearing NA 5. Venue where personal hearing will be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Signature Name: Anirban Aich Designation: State Tax Officer Jurisdiction: Godda:Duma;Jharkhand Annexure-2 FORM GST DRC-01 [See rule 100(2) 142(1)(a)] Reference No:ZD200621000420J Date:14/06/2021 To GSTIN/ID:20AADCN0972E1ZZ Name:NKAS SERVICES PRIVATE LIMITED Address: GODDA,LALMATIA AREA, ECL RAJMAHAL, Godda, Jharkhand , 814165 Tax Period : APR 2020-MAR2021 F.Y.-2020-2021 SCN Reference No. ZD200621000420J Date 14/06/2021 Section / Sub-section under which SCN is being issued-73 Act/Rules Provisions: Section 73 of the CGST/JGST Summary of Show Cause Notice (a)Brief Fact of the case: According to Statistics received from Headquarter/ Govt. Treasury it has come to our notice that you have received a sum as payment from government treasury against works Contract services completed / partly completed by you during the above mentioned. Whereas the liability reflected by you through filed returns is less than the above mentioned sum (As peer GSTR-3B). Kindly ignore the DRC-01 with Reference number ZD200621000153G and ARN/Case ID AD200621000201C dated 07.06.2021 (b)Grounds: Hence it appears that you ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6650910.10 TOTAL 268221 22.68 415387 0.98 2682212. 28 0.00 33658205.9 4 Signature Name: Anirban Aich Designation: State Tax Officer Jurisdiction: Godda:Duma;Jharkhand 3. Mr. Kartik Kurmy, learned counsel for the petitioner has argued in support of the challenge to the impugned show cause notice dated 14th June, 2021 (Annexure-1) issued by the respondent No.3 under Section 73 of the Jharkhand Goods Services Tax Act, 2017and the summary of show cause notice in FORM- DRC-01 dated 14th June, 2021 (Annexure2) also issued by respondent No.3 in exercise of power under Rule 142 (1) (a) of the Jharkhand Goods and Services Tax Rules, 2017. He submits that the impugned show cause notice Annexure-1 lacks in the very ingredient of a proper show cause notice as required under Section 73 of the Act. It has been issued in a format without striking out any irrelevant portions and without stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Apex Court in the case of Metal Forging another Vrs. Union of India others reported in 2003(2) SCC 36 wherein at para 12 the Apex Court has explained the ingredients of a proper show cause notice. Further reliance has been placed on the judgment rendered by the Apex Court in the case of Commissioner of Central Excise, Chandigarh Vrs. Shital International reported in (2011) 1 SCC 109, in particular para 19 in a case under Section 11 A of the Central Excise Act, 1944 where the Apex Court has observed that it is trite law that unless the foundation of the case is laid in the show cause notice, the Revenue cannot be permitted to build up a new case against the assessee. Section 11A of the Central Excise Act is in parameteria to Section 73 of the JGST Act under which the impugned notice has been issued. 7. In order to answer the defence taken by the respondents in their counter affidavit, specifically at para 23, learned counsel for the petitioner has relied upon the judgment of the Apex Court in the case of Union of India Vrs. Bharti Airtel Ltd. reported in 2021(54) G.S.T.L 257 (S.C.), para 23. It is submitted that the Apex Court has observed that the common portal und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counter affidavit and submitted that the show cause notice issued by the proper officer through the online portal of the GSTN is in the prescribed format DRC-01. The system is designed in a way that the show cause notice is built on standard format and in the summary thereof the proper officer can make his comments. The officer has followed the due procedure by mentioning the violations and charges on the petitioner by which he has resorted to tax evasion. He further contends that form GST ASMT-10 under Section 61 of the JGST Act read with rule 99 of the JGST Rule is not a condition precedent for raising and acquiring jurisdiction under Section 73 by the proper officer. 10. Learned counsel for the respondent submits that the decision rendered by this Court in W.P.(T) No. 2444 of 2021 was in respect of a show cause notice issued under Section 74 of the JGST Act where the charges relating to fraud or any willful misstatement or suppression of fact to evade tax are required to be specifically alleged in the show cause notice. The present notice is under Section 73 of the JGST Act under which no charges of fraud, misrepresentation, suppression of facts etc. are required to be indica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y willful misstatement or suppression of facts employed by the person chargeable with tax. In absence of clear charges which the person so alleged is required to answer, the noticee is bound to be denied proper opportunity to defend itself. This would entail violation of principles of natural justice which is a wellrecognized exception for invocation of writ jurisdiction despite availability of alternative remedy. In this regard, it is profitable to quote the opinion of the Apex Court in the case of Oryx Fisheries P. Ltd. (supra) at para 24 to 27 wherein the opinion of the Constitution Bench of the Apex Court in the case of Khem Chand versus Union of India [AIR 1958 SC 300] has been relied upon as well : 24. This Court finds that there is a lot of substance in the aforesaid contention. It is well settled that a quasi-judicial authority, while acting in exercise of its statutory power must act fairly and must act with an open mind while initiating a show-cause proceeding. A showcause proceeding is meant to give the person proceeded against a reasonable opportunity of making his objection against the proposed charges indicated in the notice. 25. Expressions like a reasonable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This Court finds that upon perusal of Annexure- 2 which is the statutory form GST DRC-01 issued to the petitioner, although it has been mentioned that there is mismatch between GSTR-3B and 2A, but that is not sufficient as the foundational allegation for issuance of notice under Section 74 is totally missing and the notice continues to be vague. 13. The Apex Court in the case of Gorkha Securities (supra) concerning an order of blacklisting has laid down the ingredients of a proper show cause notice at para 21 and 22 of the report, which are extracted herein below: 21. The central issue, however, pertains to the requirement of stating the action which is proposed to be taken. The fundamental purpose behind the serving of show-cause notice is to make the noticee understand the precise case set up against him which he has to meet. This would require the statement of imputations detailing out the alleged breaches and defaults he has committed, so that he gets an opportunity to rebut the same. Another requirement, according to us, is the nature of action which is proposed to be taken for such a breach. That should also be stated so that the noticee is able to point out that p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed return as per GSTR-3B for the period in question. It needs no reiteration that a summary of show cause notice in Form DRC-01 could not substitute the requirement of a proper show cause notice. At the same time, if a show cause notice does not specify the grounds for proceeding against a person no amount of tax, interest or penalty can be imposed in excess of the amount specified in the notice or on grounds other than the grounds specified in the notice as per section 75(7) of the JGST Act. 15. Learned counsel for the petitioner has relying upon the case of Bharti Airtel Ltd. (supra) and contended that the Apex Court has observed that the common portal of GSTN is only a facilitator. The format GST DRC-01 or 01A are prescribed format on the online portal to follow up the proceedings being undertaken against an assessee. They themselves cannot substitute the ingredient of a proper show cause notice. If the show cause notice does not specify a ground, the Revenue cannot be allowed to raise a fresh plea at the time of adjudication, as has been held by the Apex Court in a matter arising under Central Excise Act in the case of Shital International (supra) at para 19, extracted herei ..... X X X X Extracts X X X X X X X X Extracts X X X X
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