TMI Blog2023 (4) TMI 402X X X X Extracts X X X X X X X X Extracts X X X X ..... rit 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. Levy of penalty of 100% of tax dues reflected in the Summary of the Order contained in Form GST DRC-07 vide Annexure-4 in the respective writ petitions are also in the teeth of the provisions of Section 73(9) of the Act of 2017, wherein while passing an adjudication order, the Proper Officer can levy penalty up to 10% of tax dues only. The above infirmity clearly shows non-application of mind on the part of the Deputy Commissioner, State Tax, Godda Circle, Godda. Proceedings also suffer from violation of principles of natural justice and the procedure prescribed under section 73 of the Act and are in teeth of the judgment rendered by this Court in the case M/s NKAS SERVICES PRIVATE LIMITED. The impugned show-cause notices and Summary of the Show Cause Notices dated 07.10.2020 and 20.10.2020 (Annexure-2 in the respective writ petitions) and Summary of Orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 section 74 (9) of the Act of 2017. No adjudication order has been uploaded. It is further submitted that proceedings suffer from serious violation of principles of natural justices and the procedure prescribed in law. On the same plea three other writ petitions being W.P.(T) Nos.1239, 1261 and 1263 of 2022 have been allowed by this Court vide order dated 11th July 2022. Therefore, the impugned show cause notices and the Summary of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnish 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 07.10.2020 and 20.10.2020 (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. In this regard, the opinion of this Court rendered in the case of M/s NKAS SERVICES PRIVATE LIMITED Versus State of Jharkhand and others in W.P (T) 2659/2021 at paragraph-14 to 16 are profitably quoted hereunder: 14. We find that 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lea 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 assessee would be precluded from defending the charges in a vague show cause notice. That would entail violation of principles of natural justice. He can only do so, if he is told as to what the charges levelled against him are and the allegations on which such charges are based. Reliance is placed on the opinion of the Constitution Bench of the Apex Court in the case of Khem Chand versus Union of India [ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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