TMI Blog2023 (1) TMI 1131X X X X Extracts X X X X X X X X Extracts X X X X ..... mary of order in FORM GST DRC-07 on 17.02.2022 (Annexure-3); that means just within five days from issuance of show cause. Now the law is no more res integra, inasmuch as, Rule 142(1) (a) of the JGST Rules provides that the summary of show cause notice in Form DRC-01 should be issued along with the show cause notice under Section 73(1) which will spell out the contraventions in details for which the Assessee is charged. The word along with clearly indicates that in a given case show cause notice as well as summary thereof both have to be issued. As per Rule 142(1)(a) of the JGST Rules, the summary of show cause notice has to be issued electronically to keep track of the proceeding initiated against the registered person whereas a show cause notice need not necessarily be issued electronically. This Court holds that the foundation of the proceeding in the instant case suffers from material irregularity and hence not sustainable being contrary to Section 73 (1) of the JGST Act. Thus, the subsequent proceedings/impugned orders issued under DRC-07 dated 17.02.2022 cannot sanctify the same and liable to be quashed and set aside. At the cost of repetition, DRC-07 has been issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Goods and Services Tax Act, 2017 and the Jharkhand Goods and Service Tax Act, 2017 (hereinafter to be referred as the JGST Act ) vide GSTIN 20AMQPK5542B1ZF with the Commissioner of Commercial Taxes, Commercial Tax Department, Project Bhawan, Dhurwa, Ranchi-834004 for supply of taxable services in the State of Jharkhand. Further, the petitioner for supply of taxable services, receives input services, inputs and capital goods for use in the course or furtherance of its business and claims input tax credit on such inward supplies in accordance with Section 16 of the JGST Act, 2017/CGST Act, 2017. During the period under dispute the petitioner had regularly filed its monthly returns of outward supplies in FORM GSTR-1 under Section 37 of the JGST Act read the Rule 59 of the JGST Rules, monthly return of self assessment in FORM GSTR-3B under Section 39 read with rule 61 (5) of the Act. All of a sudden, a Show Cause Notice under Section 73 of the JGST Act, 2017 was issued on 12.02.2022 along with FORM GST DRC-01 of even date stating that the petitioner has violated provisions of the JGST Act, 2017 related to the Tax Period: MAR 2019 and the petitioner was asked to reply the sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intainable in the eye of law as the petitioner has efficacious and alternative remedy available of filing the appeal against any decision or order before the Appellate Authority under Section 107(1) of the GST Act. The petitioner despite having knowledge of the issuance of summary order in FORM GST DRC-07 dated 17.02.2022 has not availed the same. Further, the prayer of the petitioner is primarily concerned with the realization of its Input Tax Credit (ITC) to the tune of Rs.22,01,732.12/- lying in the electronic credit ledger of the petitioner as for the Financial Year 2018-19 last date for availing ITC as per provisions under Section 16(4) of Jharkhand Goods Service Act, 2017 was 20.10.2019; however, petitioner filed his GSTR-3B returns for the tax period mentioned above after 20.10.2019, as such, ITC availed to the tune of Rs.22,01,732.12 is in utter violation of Section 16(4) of JGST Act, 2017. Accordingly, ASMT-10 notice under Section 61 of JGST Act, 2017 and Rule 99 of JGST Rule, 2017 was issued as per the provisions of law on 26.10.2021. Since the petitioner has not given any reply to the ASMT-10; the show cause notice under Section 73 of the JGST Act, 2017 was issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Singh, J.) was the member, has taken note of the said position of law. For brevity, Paragraph-14, 15 16 of the said judgment is quoted herein below: 14. A bare perusal of the impugned show-case notice creates a clear impression that it is a notice issued in a format without even striking out any irrelevant portions and without stating the contraventions committed by the petitioner i.e. whether its actuated by reason of fraud or any willful misstatement or suppression of facts in order to evade tax. Needless to say that the proceedings under Section 74 have a serious connotation as they allege punitive consequences on account of fraud or any 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 well-recognized 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 pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or suppression are to be specifically pleaded so that it is clear and explicit to the noticee to reply thereto effectively [ See Larsen Toubro Ltd. Vs. CCE, (2007) 9 SCC 617 (para 14)]. Further in the case of CCE Vs. Brindavan Beverages (P) Ltd. reported in (2007) 5 SCC 388 relied upon by the petitioner, the Apex Court at para-14 of the judgment has held that if the allegations in the show-cause notice are not specific and are on the contrary, vague, lack details and/or unintelligible i.e. its sufficient to hold that the noticee was not given proper opportunity to meet the allegations indicated in the show-cause notice. We do not agree with the contention of the respondent that the notice ought not to be struck down if in substance it contains the matters which a notice must contain. In order to proceed under the provisions of Section 74 of the Act, the specific ingredients enumerated thereunder have to be clearly asserted in the notice so that the noticee has an opportunity to explain and defend himself. 9. Though, in the instant case purported show cause notice has been issued but at the cost of repetition, the same was issued in a format without striking out irrelevan ..... 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