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2024 (4) TMI 1001 - HC - GSTValidity Of Order passed u/s 73 - cryptic order - input tax credit wrongly availed - demand - Penalty - No opportunity to clarify reply or furnish further documents/details - HELD THAT - Perusal of the Show Cause Notice dated 30.09.2023 shows that the Department has given reasons under separate headings i.e., taxpayer has availed the more ITC as mentioned above in GSTR-3B in compression to the ITC available in GSTR-2A; short payment of tax in compression GSTR-1; and input tax credit has been wrongly availed and utilized by the taxpayer. To the said Show Cause Notice, detailed replies were furnished by the petitioner giving disclosures under each of the heads. The observation in the impugned order dated 30.12.2023 is not sustainable for the reasons that the replies dated 26.10.2023 and 06.11.2023 filed by the Petitioner are detailed replies along with supporting documents. Proper Officer had to at least consider the replies on merit and then form an opinion. He merely held that that no proper reply/explanation has been received from the taxpayer, without dealing with the same, which ex-facie shows that Proper Officer has not applied his mind to the replies submitted by the petitioner. the impugned order dated 30.12.2023 cannot be sustained, and the matter is liable to be remitted to the Proper Officer for re-adjudication. Accordingly, the impugned order dated 30.12.2023 is set aside and the matter is remitted to the Proper Officer for re-adjudication. Petitioner may file a further reply to the Show Cause Notice within a period of 30 days from today. Thereafter, the Proper Officer shall re-adjudicate the Show Cause Notice after giving an opportunity of personal hearing and shall pass a fresh speaking order in accordance with law within the period prescribed u/s 75 (3) of the Act. Petition is disposed of in the above terms.
Issues involved: Impugning an order u/s 73 of the Central Goods and Services Tax Act, 2017 for a demand raised against the Petitioner.
Summary: The Petitioner challenged an order dated 30.12.2023, which disposed of a Show Cause Notice proposing a demand of Rs. 77,80,646.00 against the Petitioner u/s 73 of the CGST Act. The Petitioner contended that detailed replies were submitted but not considered in the order. The Show Cause Notice outlined reasons for the demand, including discrepancies in ITC availed, short payment of tax, and wrongful availing of input tax credit. The Petitioner provided detailed replies with disclosures under each head. However, the impugned order stated that no proper reply or explanation was received, despite the submissions made by the Petitioner. The Court found that the Proper Officer did not adequately consider the detailed replies and failed to apply his mind to the submissions. It was noted that the Proper Officer did not seek further details from the Petitioner before concluding that no proper reply was received. Consequently, the impugned order was set aside, and the matter was remitted to the Proper Officer for re-adjudication. The Court directed the Petitioner to file a further reply to the Show Cause Notice within 30 days. The Proper Officer was instructed to re-adjudicate the matter, provide an opportunity for a personal hearing, and pass a fresh speaking order within the prescribed period under Section 75(3) of the Act. The Court clarified that it did not comment on the merits of the case and reserved all rights and contentions of the parties. Additionally, the challenge to Notification No. 9 of 2023 regarding the initial extension of time was left open. The petition was disposed of accordingly.
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