ORDER UNDER SECTION 73(9) OF AGST ACT INVALID DUE TO LACK OF VALID SCN
The petitioner has state that he used to deal in the business of trade and supply of mobile phones, etc. at Tezpur, Assam in the name and style of M/s High Tech Marketing and for the purpose of carrying the business, he had registered himself under the Goods and Services Tax [GST] vide Registration no. GSTIN/ID: 18AGZPT1254E1ZW.
The petitioner has approached this Court by the instant writ petition to assail an Order dated 30.12.2023 passed by the respondent no.4 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 30.12.2023 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 Summary of the Show 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.
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.
It is also noticed that the Show Cause Notice and the Statement in terms with Section 73 [1] and 73 [3] of both the Central Act or the State Act respectively are required to be issued only by the Proper Officer as defined in Section 2 [91].
The Impugned Orders challenged in the writ petitions are in violation of Section 75 [4] as no opportunity of hearing was given.
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] and 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 motion.
From the provisions of Section 73, it emerges that the Show Cause Notice is required to be issued by the proper officer, the statement under Section 73[3] is to be issued by the proper officer as well as the Order under Section 73[9] is required to be issued by the proper officer. Compliance of the provisions contained in sub-section [1] to sub-section [8] and sub-section [10] to sub-section [11] of Section 73 and sub-rule [1] of Rule 142 are conditions precedent to term an Order passed under sub-section [9] of Section 73 as a valid one.
Having regard to the fact that a proper and prior Show Cause Notice under sub-section [1] of Section 73 of the AGST Act, 2017 was not issued along with the Summary of Show Cause Notice in Form GST DRC-01 [Annexure-I to the writ petition] and the Attachment to Determination of Tax [Annexure-II to the writ petition], and in terms of the observations made in the common Judgment and Order dated 26.09.2024 [supra], the impugned Order dated 30.12.2023 [Annexure-IV to the writ petition] is found not sustainable in law and the same deserves to be set aside and quashed. It is accordingly ordered.
GAUHATI HIGH COURT
UDIT TIBREWAL V/S THE STATE OF ASSAM AND 3 ORS., THE PRINCIPAL COMMISSIONER OF STATE TAX, THE ASSISTANT COMMISSIONER OF STATE TAX, THE COMMERCIAL TAX OFFICER
MR. JUSTICE MANISH CHOUDHURY
WP(C)/5233/2024
25.10.2024
READ JUDGEMENT
