2025 (4) TMI 1162 - HC - GST

Violation of principles of natural justice - issuance of summary of SCN without issuing any show cause notice u/s 73 (1) of the CGST Act 2017 and the summary of the order dated 30.04.2024 without passing any order under Section 73 (9) of the CGST Act 2017 - summary order passed without giving any opportunity of hearing - HELD THAT - Similar issue has already been dealt by a Co-ordinate Bench in Construction Catalysers Pvt. Ltd. Vs. the State of Assam and 2 others 2024 (10) TMI 279 - GAUHATI HIGH COURT . Accordingly this writ petition is having similar issue the determination made in said Construction Catalysers Pvt. Ltd shall cover the present case - it was held in the above case that The issuance of the Summary of the Show Cause Notice Summary of the Statement and Summary of the Order do not dispense with the requirement of issuance of a proper Show Cause Notice and Statement as well as Page passing of the Order as per the mandate of Section 73 by the Proper Officer. As initiation of a proceedings under Section 73 and passing of an order under the same provision have consequences. The Show Cause Notice Statement as well as the Order are all required to be authenticated in the manner stipulated in Rule 26 (3) of the Rules of 2017. The present writ petition stands disposed of by setting aside the summary of show cause notice dated 08.12.2023 and the summary of order dated 30.04.2024 in terms of the determination and conclusion arrived at para 29 of Construction Catalysers Pvt. Ltd.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Court are:

• Whether the issuance of a summary of show cause notice under Section 73 of the Central Goods and Services Tax (CGST) Act, 2017, without issuance of a formal show cause notice under Section 73(1), is valid.
• Whether the summary of the order passed under Section 73(9) without a formal order under the same provision is legally sustainable.
• Whether the petitioner was entitled to an opportunity of hearing before passing the summary order under Section 73(9) and whether denial of such opportunity violates statutory requirements.
• The legal effect and distinction between the summary of show cause notice, the formal show cause notice, the statement of determination of tax under Section 73(3), and the order under Section 73(9).
• Whether the procedural requirements under the CGST Act and Rules, including authentication by the Proper Officer and compliance with Rule 26(3), were adhered to.
• The consequences of non-compliance with the procedural safeguards and whether the impugned summary notices and orders are liable to be quashed.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Validity of Issuance of Summary of Show Cause Notice Without Formal Show Cause Notice under Section 73(1)

Relevant Legal Framework and Precedents: Section 73(1) of the CGST Act mandates issuance of a show cause notice by the Proper Officer to initiate proceedings for recovery of tax not paid or short paid. The show cause notice is the foundational procedural step to invoke Section 73. Rule 26(3) of the CGST Rules, 2017 prescribes authentication requirements for notices and orders.

Court's Interpretation and Reasoning: The Court emphasized that the summary of the show cause notice (e.g., in GST DRC-01 form) cannot substitute the formal show cause notice required under Section 73(1). The summary is merely a condensed version and does not trigger the statutory machinery. The Proper Officer must issue a formal show cause notice to put the provisions of Section 73 into motion.

Key Evidence and Findings: The petitioner's case was that only a summary of the show cause notice was issued, without a formal notice. The Court found that the attachment to the summary was only the statement of determination of tax under Section 73(3), which does not replace the show cause notice.

Application of Law to Facts: Since no formal show cause notice was issued, the initiation of proceedings under Section 73 was held to be invalid and bad in law.

Treatment of Competing Arguments: The respondent's reliance on the summary notice as sufficient was rejected by the Court, which clarified the statutory distinction between the summary and the formal notice.

Conclusion: The issuance of only the summary of the show cause notice without a formal notice under Section 73(1) is impermissible and vitiates the proceedings.

Issue 2: Validity of Summary of Order Passed Under Section 73(9) Without Formal Order

Relevant Legal Framework and Precedents: Section 73(9) requires the Proper Officer to pass a reasoned order after the show cause notice proceedings. The order must be authenticated and comply with procedural safeguards.

Court's Interpretation and Reasoning: The Court held that the summary of the order (e.g., in GST DRC-07 form) cannot replace the formal order under Section 73(9). The formal order is a mandatory requirement and must be passed by the Proper Officer after hearing the party.

Key Evidence and Findings: The petitioner was denied an opportunity of hearing before the summary order was passed. The Court found this to be a violation of the statutory mandate under Section 75(4), which guarantees the right to be heard.

Application of Law to Facts: The absence of a formal order and denial of hearing rendered the summary order invalid.

Treatment of Competing Arguments: The respondent's position that the summary order sufficed was rejected as contrary to the statutory scheme.

Conclusion: The summary order without a formal order and hearing is invalid and liable to be quashed.

Issue 3: Requirement of Opportunity of Hearing and Compliance with Section 75(4)

Relevant Legal Framework and Precedents: Section 75(4) of the CGST Act mandates that the person against whom proceedings are initiated must be given a reasonable opportunity of being heard before an order is passed.

Court's Interpretation and Reasoning: The Court reiterated that denial of hearing violates the principles of natural justice and statutory requirements. The summary order passed without hearing was therefore contrary to Section 75(4).

Key Evidence and Findings: The petitioner's request for hearing was ignored, and the summary order was passed ex parte.

Application of Law to Facts: The Court held that such procedural lapses vitiate the order and justify interference.

Treatment of Competing Arguments: The respondent's failure to provide hearing was not justified, and the Court emphasized adherence to statutory safeguards.

Conclusion: Opportunity of hearing is mandatory before passing orders under Section 73(9), and its denial invalidates the order.

Issue 4: Distinction Between Summary Notices, Formal Notices, Statements of Determination, and Orders

Relevant Legal Framework and Precedents: The CGST Act and Rules distinguish between various procedural documents: the show cause notice (Section 73(1)), statement of determination of tax (Section 73(3)), and order (Section 73(9)). Summaries of these documents (in GST DRC-01, DRC-02, DRC-07) are administrative tools but do not replace the formal documents.

Court's Interpretation and Reasoning: The Court clarified that the summary of the show cause notice and the attached statement of determination do not substitute the formal show cause notice. Similarly, the summary of the order does not replace the formal order. The Proper Officer must issue and authenticate the formal documents to comply with the law.

Key Evidence and Findings: The impugned documents were only summaries without formal issuance and authentication.

Application of Law to Facts: The procedural requirements were not met, rendering the proceedings defective.

Treatment of Competing Arguments: The Court rejected the notion that summaries suffice in place of formal notices and orders.

Conclusion: Summaries are not substitutes for formal statutory documents and cannot trigger or conclude proceedings under Section 73.

Issue 5: Authentication by Proper Officer and Compliance with Rule 26(3)

Relevant Legal Framework and Precedents: Section 2(91) defines the Proper Officer authorized to issue notices and orders. Rule 26(3) requires authentication of notices and orders by the Proper Officer.

Court's Interpretation and Reasoning: The Court emphasized that only the Proper Officer can issue the show cause notice, statement, and order. Authentication is mandatory to validate these documents.

Key Evidence and Findings: The impugned summaries lacked proper authentication and formal issuance by the Proper Officer.

Application of Law to Facts: The absence of authentication and issuance by the Proper Officer rendered the documents invalid.

Treatment of Competing Arguments: The Court did not accept any deviation from the statutory authentication requirements.

Conclusion: Compliance with authentication and issuance by the Proper Officer is indispensable for validity of proceedings.

Issue 6: Consequences of Non-Compliance and Remedy

Court's Interpretation and Reasoning: The Court found that the impugned orders were passed in violation of statutory provisions and principles of natural justice. However, it recognized that the respondent authorities were under a mistaken impression that the attachment of the statement of determination to the summary notice constituted a valid show cause notice.

Key Evidence and Findings: The Court noted the procedural irregularities but acknowledged the respondent's good faith error.

Application of Law to Facts: The Court set aside and quashed the impugned summary show cause notice and summary order but granted liberty to the respondent authorities to initiate de novo proceedings under Section 73, if deemed fit, for the relevant financial year.

Treatment of Competing Arguments: The Court balanced the need for procedural compliance with the interest of justice, allowing fresh proceedings.

Conclusion: The impugned orders are quashed for procedural non-compliance, but re-initiation of proceedings is permitted with adherence to statutory mandates.

3. SIGNIFICANT HOLDINGS

The Court's crucial legal reasoning is encapsulated in the following verbatim excerpt from the earlier judgment relied upon:

"(A) 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