9911796707
TMI Blog2025 (2) TMI 1008X X X X Extracts X X X X X X X X Extracts X X X X ..... the instant writ petition to assail an Order dated 21.08.2024 passed by the respondent no. 3 purportedly in exercise of powers conferred under Section 73 of the Assam Goods and Services Tax Act, 2017. One of the grounds on which the Order dated 21.08.2024 has been challenged is that there was no proper and prior Show Cause Notice prescribed under sub-section [1] of Section 73 of the Assam Goods and Services Tax Act, 2017 and the petitioner was only served with a Summary of Show Cause Notice in Form GST DRC-01, which is also not in conformity with Section 73 read with Rule 142 [1] [a] of the Assam Goods and Services Tax Act, 2017 ['the AGST Act', for short]. 4. For ready reference, Section 73 of the Central Goods and Services Tax Act, 2017 ['the CGST Act', for short] and sub-rule [1] of Rule 142 of the Central Goods and Services Tax Rules, 2017 ['the CGST Rules', for short], which provisions are pari material to Section 73 of the AGST Act and Rule 142 [1] of the AGST Rules, 2017, are quoted hereinbelow:- Section 73. Determination of tax not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilised for any reason other than fraud or any wilful-miss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to issue the notice as provided for in sub-section [1] in respect of such amount which falls short of the amount actually payable. [8] Where any person chargeable with tax under sub-section [1] or sub-section [3] pays the said tax along with interest payable under section 50 within thirty days of issue of show cause notice, no penalty shall be payable and all proceedings in respect of the said notice shall be deemed to be concluded. [9] The proper officer shall, after considering the representation, if any, made by person chargeable with tax, determine the amount of tax, interest and a penalty equivalent to ten per cent of tax or ten thousand rupees, whichever is higher, due from such person and issue an order. [10] The proper officer shall issue the order under sub-section [9] within three years from the due date for furnishing of annual return for the financial year to which the tax not paid or short paid or input tax credit wrongly availed or utilised relates to or within three years from the date of erroneous refund. [11] Notwithstanding anything contained in sub-section [6] or sub-section [8], penalty under sub-section [9] shall be payable where any amount of self ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cause Notice in GST DRC-01 is not a substitute to the Show Cause Notice to be issued in terms with Section 73 [1] of the Central Act as well as the State Act. Irrespective of issuance of the Summary of the Show Cause Notice, the Proper Officer has to issue a Show Cause Notice to put the provision of Section 73 into motion. [B] The Show Cause Notice to be issued in terms with Section 73 [1] of the Central Act or State Act cannot be confused with the Statement of the determination of tax to be issued in terms with Section 73 [3] of the Central Act or the State Act. In the instant writ petitions, the attachment to the Summary of Show Cause Notice in GST DRC-01 is only the Statement of the determination of tax in terms with Section 73 [3]. The said Statement of determination of tax cannot substitute the requirement for issuance of the Show Cause Notice by the Proper Officer in terms with Section 73 [1] of the Central or the State Act. Under such circumstances, initiation of the proceedings under Section 73 against the petitioners in the instant batch of writ petitions without the Show Cause Notice is bad in law and interfered with. [C] It is also noticed that the Show Cause Noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied copy of the instant judgment is served upon the Proper Officer, be excluded while computing the period prescribed for passing of the order under Section 73 [10] of the Central Act as well as the State Act as the case may be. 9. The parties are not in disagreement on the fact that there was an Attachment to Determination of Tax, appended as Annexure-B to this writ petition, which was in terms of sub-section [3] of Section 73, and a Summary of Show Cause Notice in Form GST DRC-01, appended as Annexure-B to this writ petition, and there was no proper and prior Show Cause Notice issued to the petitioner, as contemplated under sub-section [1] of Section 73, AGST Act, 2017. 10. Non-issuance of a proper and prior Show Cause Notice, as contemplated under sub-section [1] of Section 73 of AGST Act, 2017 and issuance of only Summary of Show Cause Notice and Attachment to Determination of Tax cannot be said to be in compliance with sub-section [1] of Section 73 and sub-rule [1] of Rule 142 of the AGST Rules, 2017. A Summary of Show Cause Notice is held to be not a substitute of a Show Cause Notice, contemplated by the provisions of sub-section [1] of Section 73 to set the proceeding in ..... 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