9911796707
TMI Blog2023 (2) TMI 226X X X X Extracts X X X X X X X X Extracts X X X X ..... y the common order. 3. In W.P.(T) No. 1071 of 2022 which relates to tax period July, 2017 to March, 2018 the impugned summary of the show cause notice in Form GST DRC-01 (Annexure-4) dated 12.09.2018 and the summary of the order in GST DRC-07 (Annexure-7) dated 14th May, 2019 are under challenge as being in teeth of the provisions of Section 74 of the JGST Act, 2017 and Rule 142 (1)(a) of the JGST Act, 2017 as also the decision rendered by this Court in the case of M/S NKAS Services Pvt. Ltd. vs. State of Jharkhand & Ors., passed in W.P.(T) No. 2444 of 2021 judgment dated 06.10.2021 4. In W.P.(T) No. 1091 of 2022 which relates to tax period April 2018 to June 2018 the summary of the show cause notice dated 12.09.2018 (Annexure-4) and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings will not cure the material irregularity in the foundation of the proceedings. Petitioners contend that principles of natural justice have been violated. These proceedings are therefore in teeth of the ratio rendered by this court in the case of M/S NKAS Services Pvt. Ltd (Supra). 5. Mr. Rahul Saboo, leaned G.P.-II appearing on behalf of the State submits that the impugned proceedings an issuance of summary of show cause notice and summary of the order in GST DRC-07 have been defended inter alia on the ground that petitioner did participate in the proceedings by furnishing a reply in Form GST DRC-06 before the adjudicating authority. Therefore, there is no denial of principles of natural justice. The entire records including the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice has to be issued electronically to keep track of the proceeding initiated against the registered persona whereas a show cause notice need not necessarily be issued electronically. 8. This Court in the case of M/S NKAS Services Pvt. Ltd. vs. State of Jharkhand & Ors., passed in W.P.(T) No. 2444 of 2021 in which one of us (Aparesh Kumar Singh J.) was the member, has taken note of the said position of law and has categorically held that Summary of Show Cause Notice in Form DRC-01 is not a substitute of show cause notice under Section 74(1). The relevant portion of the judgment is set out below- "13. A bare perusal of the provision indicates that in a case where it appears to a proper officer that any tax has not been paid or sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notation 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that stage the authority issuing the charge-sheet, cannot, instead of telling him the charges, confront him with definite conclusions of his alleged guilt. If that is done, as has been done in this instant case, the entire proceeding initiated by the show-cause notice gets vitiated by unfairness and bias and the subsequent proceedings become an idle ceremony." 15. The Apex Court has held that the concept of reasonable opportunity includes various safeguards and one of them is to afford opportunity to the person to deny his guilt and establish his innocence, which he can only do if he is told what the charges leveled against him are and the allegations on which such charges are based. 16. It is also true that acts of fraud or suppressio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be drawn into the issue whether the requirement of issuance of Form GST ASMT-10 is a condition precedent for invocation of Section 73 or 74 of the JGST Act for the purposes of deciding the instant case. 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. 18. Since we are of the considered view that the impugned show cause notice as contained in Annexure-1 does not fulfill the ingredients of a proper show-cause notice and thus amounts to violation o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
