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2025 (1) TMI 132
Dishonour of Cheque - cognizance of offences - whether the complaint filed by the appellant herein under Section 138 of the NI Act is in accordance with the requirement under Section 142 of the NI Act? - Power of attorney holder - HELD THAT:- A perusal of the complaint (Annexure P-18) would reveal that Complaint No. 701 of 2021 has been filed in the name of M/s Naresh Potteries through Neeraj Kumar (Manager and Authority-letter holder). Further, a perusal of the cheque which is the subject-matter of the complaint would reveal that it has been issued in the name of Naresh Potteries. As aforementioned, Section 142 of the NI Act contemplates that the complaint filed under Section 138 of the NI Act should be in writing and should be filed by the payee or the holder of the cheque. Therefore, it is abundantly clear that the complaint in the present matter satisfies the requirements of Section 142 of the NI Act.
Since the High Court has quashed the summoning order on a categorical finding that the power of attorney holder did not have personal knowledge of the facts giving rise to the criminal proceedings as there was no specific pleading to that effect in the letter of authority and the affidavit of the power of attorney holder under Section 200 of the Cr.P.C., we find it apposite to reproduce the relevant portions of the aforesaid documents which contain averments regarding authorisation in favour of and knowledge on the part of Sh. Neeraj Kumar.
This Court in M/S TRL KROSAKI REFRACTORIES LTD. VERSUS M/S SMS ASIA PRIVATE LIMITED & ANR. [2022 (2) TMI 1112 - SUPREME COURT] had come to a categorical finding that what can be treated as an explicit averment, cannot be put in a straightjacket but will have to be gathered from the circumstance and manner in which it has been averred and conveyed, based on the facts of each case. The relevant portion of the said decision has already been extracted above. In the instant matter, the averments made in the documents referred to above, make it wholly clear that Sh. Neeraj Kumar possessed personal knowledge of the facts of the matter at hand and was well-equipped and duly authorised to initiate criminal proceedings against Respondent No.1. That beside the fact that it would always be open for the trial court to call upon the complainant for examination and crossexamination, if and when necessary, during the course of the trial. As such, a peremptory quashing of the complaint case by the High Court is completely unwarranted and that too on an incorrect factual basis.
Conclusion - The complaint under Section 138 of the NI Act must be filed by the payee or holder in due course, and a power of attorney holder must have personal knowledge and authorization to file the complaint.
Appeal allowed.
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2025 (1) TMI 131
Dishonour of Cheque - violation of cardinal ingredient of Section 138 (b) of the NI Act - discharge of burden to prove - presumption under Sections 139 and 118 of the NI Act - non-production of bank statement / IT return by the complainant would vitiate the complaint itself.
Whether the complainant violated the cardinal principle laid down under Section 138(b) of the Negotiable Instruments Act? - HELD THAT:- In Suman Sethi case [2000 (2) TMI 822 - SUPREME COURT] the Hon’ble Supreme Court held 'If in a notice while giving the break up of the claim the cheque amount, interest, damages etc. are separately specified, other such claims for interest, cost etc. would be superfluous and these additional claims would he severable- and will not invalidate the notice. If, however, in the notice an omnibus demand is made without specifying what was due under the dishonored cheque, notice might well fail to meet the legal requirement and may be regarded as bad.'
Thus, to make a valid demand notice as per the proviso of Section 138(b) of the Act, 1881, the due amount of bounced cheque, and other additionally claimed amounts should be mentioned in a separate portion. In the demand notice, if other amount is mentioned with the cheque amount in a separate portion in detail, the said notice cannot be faulted. In the case on hand, the complainant demanded the cheque amount of Rs.9.00 lakhs and he additionally demanded Rs.5,000/- towards charges for issuance of the legal notice. Therefore, Ex.P.11 is a valid one.
Whether the non-production of bank statements or Income Tax returns by the complainant would vitiate the complaint itself? - HELD THAT:- In the light of the decision of the Madhya Pradesh High Court in Ragini Gupta vs. Piyush Dutt Sharma [2019 (4) TMI 114 - MADHYA PRADESH HIGH COURT], the finding of the learned trial Court that as the complainant failed to disclose Rs.42.00 lakhs alleged to have invested for the production of the film in his income tax returns is not correct because if the complainant did not disclose his income in the Income Tax Return, then the Income Tax Department is well within its rights to reopen the assessment of income of the assessee and to take action as per the provisions of Income Tax Act.
Whether the complainant had discharged the onus, and whether the accused failed to discharge the onus on his part? - HELD THAT:- As far as the aspect of existence of basic ingredients for drawing of presumption under Sections 118 and 139 of the N.I. Act is concerned, the accused did not deny his signature on the cheque in question that had been drawn in favour of the complainant on a bank account maintained by the accused. The said cheque was presented to the bank concerned within the period of its validity and was returned unpaid for the reason funds insufficient. So all the basic ingredients of Sections 118 and 139 of the N.I Act are apparent on the face of the record. The trial Court had failed to take note of all these facts and failed to draw the requisite presumption. Therefore, it is required to be presumed that the cheque in question was drawn for consideration and the holder of the cheque i.e. the complainant received the same in discharge of an existing debt. The onus, therefore, shifts on the accused to establish a probable defence so as to rebut such a presumption, which he failed to do so.
With regard to the preponderance of probabilities, the accused has to bring on record such facts and circumstances which may lead the Court to conclude either that the consideration did not exist or that its non-existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that the consideration did not exist. Mere denial would not fulfil the requirements of rebuttal as envisaged under Sections 118 and 139 of the N.I. Act.
Conclusion - i) In the demand notice, if other amount is mentioned with the cheque amount in a separate portion in detail, the said notice cannot be faulted. ii) Complainant correctly disclosed Rs.42.00 lakhs alleged to have invested for the production of the film in his income tax returns. iii) It is required to be presumed that the cheque in question was drawn for consideration and the holder of the cheque i.e. the complainant received the same in discharge of an existing debt. The onus, therefore, shifts on the accused to establish a probable defence so as to rebut such a presumption, which he failed to do so.
Appeal allowed.
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2025 (1) TMI 130
Dishonour of Cheque - conviction of the petitioner-accused under Section 138 of the Negotiable Instruments Act, 1881 - compounding of offences - compromise arrived between the parties - HELD THAT:- Having taken note of the fact that the petitioneraccused and the complainant-respondent have settled the matter and the complainant has no objection in compounding the offence, therefore, this Court sees no impediment in accepting the prayer made on behalf of the accusedpetitioner for compounding of offence while exercising power under Section 147 of the Act as well as in terms of guidelines issued by the Hon’ble Apex Court in Damodar S. Prabhu V. Sayed Babalal H. [2010 (5) TMI 380 - SUPREME COURT], wherein the Hon’ble Apex Court has held 'A bare reading of this provision would lead us to the inference that offences punishable under laws other than the Indian Penal Code also cannot be compounded. However, since Section 147 was inserted by way of an amendment to a special law, the same will override the effect of Section 320(9) of the CrPC, especially keeping in mind that Section 147 carries a non obstante clause.'
In K. Subramanian Vs. R. Rajathi [2009 (11) TMI 1013 - SUPREME COURT], it has been held by the Hon’ble Apex Court that in view of the provisions contained in Section 147 of the Act read with Section 320 of Cr.P.C., compromise arrived at can be accepted even after recording of the judgment of conviction.
Conclusion - Since, in the instant case, the petitioner-accused after being convicted under Section 138 of the Act, has compromised the matter with the complainant, prayer for compounding the offence can be accepted.
Petition disposed off.
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2025 (1) TMI 129
Dishonour of Cheque - Hindu Undivided Family (HUF) can be considered an "association of individuals" under Section 141 of the NI Act - Applicant is actively participating into the affairs of the Accused No. 1. or not - vicarious liability of members of HUF - HELD THAT:- The discussion of the Supreme Court in the said Ramanlal Patel [2008 (2) TMI 859 - SUPREME COURT] is with reference to the definition of “joint family” and “person” as defined under the Gujarat Ceiling Act. The said discussion will not apply to the explanation of the term “Company” as given in Section 141 of the NI Act - the Supreme Court was considering the scope of Section 3 of the Income Tax Act, 1922, which classifies the assessee under the heads “individuals”, “Hindu Undivided Families”, “Companies”, “Local Authorities”, “Firms” and “Other Associations of Persons”. The Supreme Court has observed that if Hindu undivided family is to be considered as an association of persons, there was no point in making separate provision for the assessment of “Hindu Undivided Family”. Thus, the said decision of the Supreme Court interpreting Section 3 of the Income Tax Act, 1922 will have no application to Section 141 of the NI Act.
It is well-settled that the decision of a High Court will have the force of binding precedent only in the State or territories on which the court has jurisdiction. In other States or outside the territorial jurisdiction of that High Court it may, at best, have only persuasive effect. By no amount of stretching of the doctrine of stare decisis, can judgment of one High Court be given the status of a binding precedent so far as other High Courts or Courts or Tribunals within their territorial jurisdiction are concerned.
Conclusion - The term 'association of individuals' will include Hindu Undivided Family of which the business is said to be a joint concern.
The Criminal Application is dismissed.
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2025 (1) TMI 128
Disallowance of exemption u/s 11 - delay in filing Form No 10 - as argued delay in filing Form No. 10B electronically was due to genuine reason as the appellant came to know at a later stage that even through books are audited and audit report is issued Chartered Accountant has not uploaded Form No 10 - HELD THAT:- Since the audit report were duly obtained by the appellant well within the due of filing return of income for the respective assessment years under consideration, and delay in filing of such report by the appellant was due to its bonafied belief that, the auditor who issued the audit report in Form No 10B had filed the same online in time. Beyond a plea of the sort the appellant there can not necessarily be independent proof or material to establish failure of auditor to acted in due diligence. In these circumstances of the cases, the appellant, in our considered view, was successful in exhibiting bona-fide reasons as to why there was delay in filing the required audit reports for both the year under consideration.
As decided in ‘Shree Jain Swetamber Murtipujak Tapagachha Sangh [2024 (3) TMI 1327 - BOMBAY HIGH COURT] and ‘Al Jamia Mohammediyah Education Society [2024 (4) TMI 939 - BOMBAY HIGH COURT] held that the error on the part of auditor cannot be rejected but should be accepted as a reasonable cause shown by the trust management. In that case alike the present case, assessee did not suo-motto even realize its mistake of non-filing of audit report along-with return until the intimation was served u/s 143(1) of the Act.
Revenue was not justified in denying the benefit of exemption u/s 11 of the Act in pleno to the appellant trust.
Remand matters back to the files Ld. AO with a direction to (a) take on record both the audit reports filed for the respective assessment years (b) treat them as filed in compliance with the provisions of section 12A(1)(b) of the Act and (c) then assess the total income of the appellant trust after giving effect to the provision of section 11 and section 12 of the Act in the light of applicable provisions of the Act.
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2025 (1) TMI 127
Challenge to actions and orders passed by the respondent authorities concerning the freezing of their bank account and subsequent adjudication proceedings - undue hardship and a violation of procedural fairness - HELD THAT:- Upon a thorough examination of the documents presented to the Court and taking into account the arguments put forth by the parties, this Court allows the writ petition as statutory provisions on limitation should be interpreted liberally in cases where genuine hardships are demonstrated, particularly in light of judicial precedents supporting such relief.
In S.K. CHAKRABORTY & SONS VERSUS UNION OF INDIA & ORS. [2023 (12) TMI 290 - CALCUTTA HIGH COURT] the Hon’ble Division Bench held that 'since provisions of Section 5 of the Act of 1963 have not been expressly or impliedly excluded by Section 107 of the Act of 2017 by virtue of Section 29 (2) of the Act of 1963, Section 5 of the Act of 1963 stands attracted. The prescribed period of 30 days from the date of communication of the adjudication order and the discretionary period of 30 days thereafter, aggregating to 60 days is not final and that, in given facts and circumstances of a case, the period for filling the appeal can be extended by the Appellate Authority'.
In light of the procedural irregularities and the arbitrary nature of the actions, this court finds the petitioner’s case to be meritorious - Accordingly, the writ petition is allowed, and the appellate order is quashed.
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2025 (1) TMI 126
Issuance of a Summary of Show Cause Notice in Form GST DRC-01 without a proper Show Cause Notice - requirements under Section 73 of the CGST/AGST Act, 2017 satisfied or not - infraction to the various provisions of the Central Act, the State Act as well as the Rules framed thereunder - principles of natural justice have been violated as is not only a statutory mandate but also violative of Article 21 of the Constitution - lack of signatures on the attachments - whether the said attachment can be said to be a Show Cause Notice as per the mandate of both the Central Act as well as the State Act and the Rules made therein under?
HELD THAT:- From a perusal of the Rule 142 of the Rules of 2017, it would show that in addition to the Show Cause Notice to be issued under Section 73 (1) and the Statement of determination of tax under Section 73 (3), there is an additional requirement of issuance of a Summary of the Show Cause Notice in GST DRC-01 and the Summary of the Statement in GST DRC-02. The natural corollary from the above analysis is that the issuance of the Show Cause Notice and the Statement of determination of tax by the Proper Officer are mandatory requirement in addition to the Summary of Show Cause Notice in GST DRC-01 and Summary of the Statement in GST DRC-02.
This Court is of the view that the Summary of the Show Cause Notice along with the attachment containing the determination of tax cannot be said to be a valid initiation of proceedings under Section 73 without issuance of a proper Show Cause Notice. The Summary of the Show Cause Notice is in addition to the issuance of a proper Show Cause Notice. Under such circumstances, this Court is of the opinion that the impugned order challenged in the instant writ petition is contrary to the provisions of Section 73 as well as Rule 142 (1) (a) of the Rules as the said impugned Orders were passed with issuance of a proper Show Cause Notice.
Whether Rule 26 (3) can be applicable to Chapter-XVIII when the said Sub-Rule on refers to Chapter-III? - HELD THAT:- This Court has duly perused the Summary of the Show Cause Notices wherein the petitioner was only asked to file his reply on a date specified. There was no mention as to the date of hearing and the Column was kept blank. However, the petitioner had sought for an opportunity of hearing which was however not given. In this regard, if this Court takes note of Section 75 (4) of both the Central Act as well as State Act, it would be seen that it is the mandate of the said provision that an opportunity of hearing should be granted when a request is received in writing from the person chargeable with tax or penalty or when any adverse decision is contemplated against such person. The mandate of Section 75 (4) of both the Central and State Act are safeguards provided to the assessees so that they can have a say in the hearing process.
This Court is of the view that 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 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 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. Accordingly, this Court is of the opinion that the Impugned Order challenged in the writ petition are in violation of Section 75 (4) as no opportunity of hearing was given.
Conclusion - A proper Show Cause Notice is mandatory under Section 73, and digital signatures are required for authentication under Rule 26(3).
The impugned order dated 30.04.2024 issued by the respondent no.3 is hereby set aside and quashed - Petition disposed off.
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2025 (1) TMI 125
Denial of opportunity to defend itself due to the alleged failure of service of a show cause notice under the Goods and Services Tax Act, 2017 - Remedy of appeal having been denied on the ground of delay that was for want of knowledge - HELD THAT:- Division bench of this Court in the Ola Fleet Technologies Pvt. Ltd. v. State of U.P. and Others [2024 (7) TMI 1543 - ALLAHABAD HIGH COURT] has dealt with this aspect of the matter and it has been held that no material existed to reject the contention advanced on behalf of the petitioner that order impugned imposing liability of tax was not reflecting under tab 'view notices and orders' and so there remained a valid dispute as to non consideration/consideration of the various documents of returns available which could have been shown in reply to the show cause notice.
The division bench was of the view that party under liability of tax in an ex parte order needs at-least an opportunity to put up his defense by submitting papers which may have led assessing officer to uphold the claim for exemption from tax liability. The division bench accordingly, instead of keeping the matter pending disposed off the same with a direction that impugned order may be taken as notice to enable the petitioner to submit his reply and thereafter assessing officer may have to pass a fresh order.
The view taken by the division benches as cited before the Court are absolutely correct on the principle that nobody should be condemned unheard and legislature while incorporating the provision of notice/ show cause notice, intended so.
Conclusion - Nobody should be condemned unheard and legislature while incorporating the provision of notice/ show cause notice, intended so. Effective communication of notices is essential for ensuring a fair hearing and that procedural lapses should not deprive parties of their right to appeal.
It is directed that the order passed by the assessing officer dated 07.02.2024 shall be taken to be notice within the meaning of Section 73 of the GST Act, 2017 to enable the petitioner to file his objections and place its documents before assessing officer/competent authority for its consideration - petition disposed off.
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2025 (1) TMI 124
Challenge to final order referable to Section 73 of the Central Goods and Services Tax Act, 2017 CGST Act - non-compliance with personal hearing - violation of principles of natural justice - HELD THAT:- Fact noted is that pursuant to the original Show Cause Notice which had come to be issued, the petitioner had furnished a detailed response. However, the same has been perfunctorily brushed aside and the observations produced.
An identical challenge formed the subject matter of XEROX INDIA LIMITED VERSUS ASSISTANT COMMISSIONER, WARD 208 (ZONE -11) DGST AND ANR [2024 (12) TMI 1283 - DELHI HIGH COURT]. Dealing with an identically worded order framed by the said GST Officer, it is obserfed that 'The Assistant Commissioner has clearly adopted a template where the only reason assigned is that the reply filed was “not comprehensible, conceivable, not perspicuous and is ambiguous”. This clearly exhibits an abject non-application of mind and the officer repeatedly employing identical phraseology to deal with such matters.'
The impugned order dated 31 August 2024 cannot be sustained - petition allowed.
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2025 (1) TMI 123
Challenge to Summary of the Show Cause Notice - attachment to the determination of tax - attachments to both the GST DRC-01 as well as the GST DRC-07 did not contain any signature of the Proper Officer - opportunity of hearing as provided under Section 75 (4) of the CGST/AGST Act, 2017 not provided before passing of the order - violation of principles of natural justice - whether the said attachment can be said to be a Show Cause Notice as per the mandate of both the Central Act as well as the State Act and the Rules made therein under?
HELD THAT:- It would be apposite to take note of that in all these cases, the Summary of the Show Cause Notices have been issued in terms with Section 73 - Taking into account that it is only in the circumstances referred to above, the Proper Officer is required to issue a Show Cause Notice, therefore, the Show Cause Notice is required to specifically mention the reason(s) and the circumstances why the provision of Section 73 had been set into motion. The person against whom the said Show Cause Notice is issued would only have an adequate opportunity to submit a representation justifying that the prerequisites for issuance of Show Cause Notice is not there if and only if the reason(s) for issuance of the Show Cause is specifically mentioned in the Show Cause Notice.
This Court is of the view that the Summary of the Show Cause Notice along with the attachment containing the determination of tax cannot be said to be a valid initiation of proceedings under Section 73 without issuance of a proper Show Cause Notice. The Summary of the Show Cause Notice is in addition to the issuance of a proper Show Cause Notice. Under such circumstances, this Court is of the opinion that the impugned order challenged in the instant writ petition is contrary to the provisions of Section 73 as well as Rule 142 (1) (a) of the Rules as the said impugned Orders were passed with issuance of a proper Show Cause Notice.
Whether the determination of tax as well as the order attached to the Summary to the Show Cause Notice in GST DRC-01 and the Summary of the Order in GST DRC-07 can be said to be the Show Cause Notice and order respectively, this Court duly dealt with what would constitute a Show Cause Notice, the Statement as per Section 73 (3) as well as the Summary to the Show Cause Notice in GST DRC-01 and Summary of the Statement in GST DRC-02. This Court had also opined above that the statement to be provided by the Proper Officer in terms with Section 73 (3) cannot be said to be a Show Cause Notice which is required to be issued in terms with Section 73 (1). Therefore, the submission of the respondents that the statement attached to the Summary of the Show Cause Notice is the Show Cause Notice is completely misconceived and contrary to Section 73 (1) and 73 (3).
Whether Rule 26 (3) can be applicable to Chapter-XVIII when the said Sub-Rule on refers to Chapter-III? - HELD THAT:- In the case of M/S. SILVER OAK VILLAS LLP VERSUS THE ASSISTANT COMMISSIONER (ST) , THE ADDITIONAL COMMISSIONER OF CENTRAL TAX, STATE OF TELANGANA, UNION OF INDIA, CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS [2024 (4) TMI 367 - TELANGANA HIGH COURT], the learned Division Bench of the Telangana High Court had applied Rule 26 (3) of the Rules of 2017 even to Chapter-XVIII of the Rules of 2017. In the case of AV BHANOJI ROW VERSUS ASSISTANT COMMISSIONER ST VISAKHAPATNAM [2023 (2) TMI 1224 - ANDHRA PRADESH HIGH COURT], the learned Division Bench of the Andhra Pradesh High Court held that the signatures cannot be dispensed with and Sections 160 and 169 cannot save an order, notice, communication which did not contain a signature. In another judgment of the learned Division Bench of Delhi High Court in the case of RAILSYS ENGINEERS PRIVATE LIMITED & ANR. VERSUS THE ADDITIONAL COMMISSIONER OF CENTRAL GOODS AND SERVICES TAX (APPEALS-II) & ANR. [2022 (7) TMI 1230 - DELHI HIGH COURT], the Delhi High Court held that there was a requirement of at least putting the digital signatures on the Show Cause Notice and Order in Original.
This Court has duly perused the Summary of the Show Cause Notices wherein the petitioner was only asked to file his reply on a date specified. There was no mention as to the date of hearing and the Column was kept blank. However, the petitioner had sought for an opportunity of hearing which was however not given. In this regard, if this Court takes note of Section 75 (4) of both the Central Act as well as State Act, it would be seen that it is the mandate of the said provision that an opportunity of hearing should be granted when a request is received in writing from the person chargeable with tax or penalty or when any adverse decision is contemplated against such person. The mandate of Section 75 (4) of both the Central and State Act are safeguards provided to the assessees so that they can have a say in the hearing process.
This Court is of the opinion that when the statute is clear to provide an opportunity of hearing, there is a requirement of providing such opportunity. In fact a perusal of the Form GST DRC-01 enclosed to the writ petition shows that details have been given as regards the date by which the reply has to be submitted; date of personal hearing; time of personal hearing and venue of personal hearing. It is seen that in the Summary of the Show Cause Notice only the date for submission of reply has been mentioned - in a case where no reply is filed, a question arises whether the Proper Officer can pass an adverse order without providing an opportunity for hearing. The answer has to be in the negative else it would render the second part of Section 75 (4) redundant.
Conclusion - This Court is of the view that 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 - 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 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. Accordingly, this Court is of the opinion that the Impugned Order challenged in the writ petition are in violation of Section 75 (4) as no opportunity of hearing was given.
The impugned order dated 27.04.2024 issued by the respondent no.3 is hereby set aside and quashed. This Court also cannot be unmindful of the fact that it is on account of certain technicalities and the manner in which the impugned order was passed, this Court interfered with the impugned order and hence set aside and quashed the same - this Court while setting aside the impugned Order-in-Original dated 27.04.2024, grants liberty to the respondent authorities to initiate de novo proceedings under Section 73, if deemed fit for the relevant financial year in question - Petition disposed off.
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2025 (1) TMI 122
Challenge to action initiated by the official respondents - procedure under Section 64(2) of the KGST Act has been undertaken without section 67 (1) of the KGST Act having been complied - HELD THAT:- This Court is of the considered opinion that the indulgence as requested by the petitioner is not required to be granted since vide communication dated 12.11.2024 the petitioner has merely been afforded an opportunity of hearing after the official respondents have set out the discrepancies as noticed by them. Hence, it is open to the petitioner to respond to the discrepancies as notified in the communication dated 12.11.2024. While responding to the same, it is open to the petitioner to take all contentions permissible under law including the contentions with regard to Section 67 (1) of the KGST Act that has been urged in the present writ petition.
Petition disposed off.
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2025 (1) TMI 121
Denial of benefit of input tax credit on account of the provisions contained in Sub Section (4) of Section 16 of the CGST/SGST Acts, for the financial year 2018-19 - HELD THAT:- Having regard to the assertion of the learned counsel appearing for the petitioner that on account of notification of Sub-Section (5) of Section 16 of the CGST/SGST Acts, the petitioner will be entitled to input tax credit, which has been denied to the petitioner by Ext.P1 order, the writ petition will stand disposed of, setting aside Ext.P1 to the extent that it denied input tax credit to the petitioner on account of the provisions of Sub Section (4) of Section 16 of the CGST/SGST Acts and directing the competent authority to pass fresh orders, after taking note of the provisions contained in Section 16(5) of the CGST/SGST Acts and after affording an opportunity of hearing to the petitioner, within a period of three months from the date of receipt of a certified copy of this judgment.
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2025 (1) TMI 120
Amendment made to Section112 of the Central Goods and Services Tax Act, 2017 substituting “twenty per cent” pre deposit to “ten per cent” for maintaining an appeal before the Goods and Services Tax Tribunal - HELD THAT:- As of now pre-deposit has been reduced to “ten per cent” but however, the same is made effective only from 01.11.2024. It is an admitted position that the GST Tribunals have not been constituted as yet and there is no possibility of an appeal being filed prior to 01.11.2024. In such circumstance we direct that the assessee on payment of “ten per cent” of the tax amounts in dispute shall be entitled to stay of recovery till the Tribunal is constituted and an appeal is filed within such term as provided therein.
Petition disposed off.
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2025 (1) TMI 119
Cancellation of registration granted to the petitioners under the provisions of the CGST / SGST Acts - rejection on the ground that it was belatedly filed - HELD THAT:- The show cause notice issued to the petitioner in this case is produced as Ext.P1. A perusal of Ext.P1 shows that the same has been issued in Form GST Reg 31, which is the form for issuing a notice regarding suspension of registration.
A perusal of the judgment of this Court in W.P(C)No.29807 of 2022 [2022 (12) TMI 1370 - KERALA HIGH COURT] will indicate that it was a case where a show cause notice has been issued alleging that there was failure to furnish returns for a continuous period of six months.
Conclusion - The cancellation orders quashed, allowing the petitioners to restore their registrations subject to conditions imposed.
Petition disposed off.
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2025 (1) TMI 118
Challenge to SCN for not paying GST under the Central Goods and Services Tax (CGST)/Telangana State Goods and Services Tax (TSGST) Act, 2017, despite having paid GST under the Integrated Goods and Services Tax (IGST) Act, 2017 - HELD THAT:- In the peculiar facts and circumstances of the case, where the petitioner has already deposited the tax under the IGST Act, it is deemed proper to direct the petitioner to prefer appeal(s) within three weeks from today before the competent appellate authority. If such appeal(s) is/are filed within aforesaid time, despite not depositing 10% of the tax demanded, as per the statutory requirement, the competent appellate authority shall consider and decide such appeal(s) on merits expeditiously.
Petition disposed off.
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2025 (1) TMI 117
Negative blocking of the Electronic Credit Ledger - interpretation of Rule 86A of the CGST Rules, 2017 - HELD THAT:- Though the counsel for the respondents has placed reliance on the letter dated 19.08.2024 issued to the respondents by the Directorate General of GST Intelligence, Regional Unit, Jamshedpur, to justify their action, when such action is not permitted by the Rules framed under the Act, it would be prima facie wholly without jurisdiction. Therefore, the order at Annexure 5 is kept in abeyance until further orders.
Also having regard to Rule 6(2)(b) of the Jharkhand Goods and Services Tax (SGST) Rules, 2017, further proceedings before the respondents shall stand stayed.
List this case on 11.12.2024.
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2025 (1) TMI 116
Cancellation of registration of petitioner - non-filing of returns - order would seem to indicate that no tax liability stands foisted upon the petitioner nor are there any outstanding payments due - HELD THAT:- The writ petition is disposed off by according liberty to the writ petitioner to apply for revocation of the order of cancellation and furnish all Returns for the periods in respect of which there was non-compliance. In case such an application is moved within a period of three weeks from today, the competent authority may examine the prayer for revocation and dispose of the same in accordance with law.
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2025 (1) TMI 115
Challenge to order passed by the appellate authority dismissing the appeal filed by the appellants as it was time-barred - HELD THAT:- Taking note of the fact that the appellants are in possession of certain customs documents and that their contention is that no tax is payable since it was an import transaction on which customs duty has been remitted and also taking into consideration that the appellants have pre-deposited a sum of Rs.1,48,895/- at the time of preferring the appeal, being 10% of the disputed tax and also taking note of the fact that the tax period is from July 1, 2017 to March 31, 2018 i.e. when the GST regime was introduced, this Court is of the view that one more opportunity can be granted to the appellants.
It is made clear that this order has been passed without going into the merits of the matter and taking into consideration the peculiar facts and circumstances of the case and also the relevant tax period.
The order passed in the writ petition is set aside and the writ petition is allowed and the order passed by the appellate authority and adjudication order passed under Section 73 of the Act dated 17th April, 2023 are set aside and the matter is remanded back to the adjudicating authority for fresh consideration - Appeal allowed.
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2025 (1) TMI 114
Maintainability of petition - availability of alternative remedy - HELD THAT:- The order directing the appellant to approach the appellate authority does not call for interference. However, we are of the view that instead of directing payment of cost to the respondent of Rs. 5,00,000/-, the appellant shall deposit the said amount before the adjudicating authority and the said deposit shall be treated as the requisite pre-deposit for entertaining the appeal by the appellate authority.
Appeal disposed off.
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2025 (1) TMI 113
Cancellation of GST registration - impugned order came to be passed without providing any opportunity of personal hearing to the petitioner - HELD THAT:- In the present case, it appears that now the petitioner is willing to file an appeal against the impugned assessment order dated 22.12.2023 passed by the respondent and today, the learned counsel for the petitioner has restricted his relief and requested this Court to grant liberty to the petitioner to file an appeal against the impugned assessment order since it will be sufficient to meet out the case of the petitioner.
Though this petition has been filed challenging the impugned order dated 22.12.2023, considering the submissions made by the petitioner, this Court is inclined to dismiss the present petition by granting liberty to the petitioner to file an appeal against the impugned assessment order.
Petition dismissed.
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