TMI Blog2022 (7) TMI 703X X X X Extracts X X X X X X X X Extracts X X X X ..... UTY COMMISSIONER OF STATE TAXES, GODDA [ 2021 (10) TMI 880 - JHARKHAND HIGH COURT] categorically held that summary of show cause notice in Form GST DRC-01 cannot substitute the requirement of a proper show cause notice under section 73(1) of the Act of 2017. It seems that the authorities have, after issuance of show-cause notices dated 20.08.2020, 27.008.2020 and 28.08.2020 (Annexure-2 in the respective writ petitions) and Summary of show cause notices contained in GST DRC-01 (Annexure-3 in the respective writ petitions) of the same date, proceeded to issue Summary of the Order dated 12.12.2020 and 14.12.2020 (Annexure-4 in the respective writ petitions). Respondents have also not brought on record any adjudication order. The impugned show-cause notices and Summary of the Show Cause Notices dated 20.08.2020, 27.08.2020 and 28.08.2020 (Annexure-2 3 in the respective writ petitions) and Summary of Orders contained in Form GST DRC-07 dated 12.12.2020 and 14.12.2020 (Annexure-4 in the respective writ petitions) are quashed - Petition allowed. - W.P (T) No. 1239 of 2022 W.P (T) No. 1261 of 2022 W.P (T) No. 1263 of 2022 - - - Dated:- 11-7-2022 - Hon ble Mr. Justice Aparesh Kuma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ners are duly registered under the provisions of JGST Act, 2017. 6. Common ground taken in all these writ petition is that the show-cause notices at Annexure-2 in the respective writ petitions is in teeth of the provisions of Section 73(1) the Act of 2017 and the judgment rendered by this Court in the case of M/s NKAS SERVICES PRIVATE LIMITED Versus State of Jharkhand others in W.P (T) No. 2659/2021 dated 09.02.2022. Summary of Show-Cause Notice cannot be a substitute of a proper show-cause notice as has been held by this Court in M/s NKAS SERVICES PRIVATE LIMITED (Supra). The show-cause notice does not strike out the relevant particulars and does not even enumerate the contravention which the petitioners have been called upon to reply. These proceedings were initiated allegedly on account of a mismatch in GSTR-3B and GSTR-2A for the period in question and that the petitioners have taken undue ITC to which they were not entitled. Petitioners have also taken a plea that Summary of the Order contained in Form GST DRC-07 imposes 100% penalty which is impermissible under the provisions of Section 73(9) of the Act of 2017. 100% penalty can only be levied in a proceeding under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idered the submissions of learned counsel for the parties and taken note of the materials on record. We may straightaway point out that notices under section 73(1) of the Act of 2017 at Annexure-2 in the respective writ petitions are in the standard format and neither any particulars have been struck off, nor specific contravention have been indicated to enable the petitioners to furnish a proper reply to defend themselves. The show-cause notices can therefore, be termed as vague. This Court has, in the case of M/s NKAS SERVICES PRIVATE LIMITED (Supra) categorically held that summary of show cause notice in Form GST DRC-01 cannot substitute the requirement of a proper show cause notice under section 73(1) of the Act of 2017. It seems that the authorities have, after issuance of show-cause notices dated 20.08.2020, 27.008.2020 and 28.08.2020 (Annexure-2 in the respective writ petitions) and Summary of show cause notices contained in GST DRC-01 (Annexure-3 in the respective writ petitions) of the same date, proceeded to issue Summary of the Order dated 12.12.2020 and 14.12.2020 (Annexure-4 in the respective writ petitions). Respondents have also not brought on record any adjudication ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es Ltd. and CCE v. Champdany Industries Ltd.) Admittedly, in the instant case, no such objection was raised by the adjudicating authority in the show cause notice dated 22-6-2001 relating to Assessment Years 1988-1989 to 2000-2001. However, in the show-cause notice dated 12-12-2000, the process of electrifying polish finds a brief mention. Therefore, in the light of the settled legal position, the plea of the learned counsel for the Revenue in that behalf cannot be entertained as the Revenue cannot be allowed to raise a fresh plea, which has not been raised in the show-cause notice nor can it be allowed to take contradictory stands in relation to the same assessee. In a notice under Section 74 of the JGST Act, the necessary ingredients relating to fraud or willful misstatement of suppression of fact to evade tax have to be impleaded whereas in a notice under Section 73 of the same act the Revenue has to specifically allege the violations or contraventions, which has led to tax not being paid or short paid or erroneously refunded or Input Tax Credit wrongly availed or utilized. It is trite law that unless the foundation of a case is laid down in a show cause notice, the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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