9911796707
TMI Blog2022 (2) TMI 1157X X X X Extracts X X X X X X X X Extracts X X X X ..... risdiction:Godda:Dumka:Jharkhand State/UT:Jharkhand Reference No:ZD200621000420J Date:14/06/2021 To GSTIN/ID:20AADCN0972E1ZZ Name:NKAS SERVICES PRIVATE LIMITED Address: GODDA,LALMATIA AREA, ECL RAJMAHAL, Godda, Jharkhand , 814165 Tax Period : APR 2020-MAR2021 F.Y. 2020-2021 ARN-NA Date-N/A (Voluntary Payment Intimation details, if applicable) Act/Rules Provisions: Section 73 of the CGST/JGST Show Cause Notice under Section 73 It has come to my notice that tax due has not been paid or short paid or refund has been released erroneously or input tax credit has been wrongly availed or utilized by you or the amount paid by you through the above referred application for intimation of voluntary payment for the reasons and other details mentioned in annexure for the aforesaid tax period Therefore, you are directed to furnish a reply along with supporting documents as evidence in support of your claim by the date mentioned You may appear before the undersigned for personal hearing either in person or through authorized representative for representing your case on the date, time and venue, if mentioned in table below. Please Note that besides tax, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3B). Kindly ignore the DRC-01 with Reference number ZD200621000153G and ARN/Case ID AD200621000201C dated 07.06.2021 (b)Grounds: Hence it appears that you are not reflecting in your filed returns total payment received and consequently total liability accrued , or you may be reflecting the taxable turnover as exempted turnover, just to evade payment of due tax to the Government. Kindly ignore the DRC-01 with Reference number ZD200621000153G and ARN/Case ID AD200621000201C dated 07.06.2021 due to an error. C. Tax and other dues (Amount in Rs.) Sr. No. Tax Rate (%) Turn over Tax Period Act POS (Place of Supply Tax Interest Penalty others Total From To 1 2 3 4 5 6 7 8 9 10 11 12 1 12 6564881 8.75 APR 2020 APR 2020 SGST NA 787785 8.25 151254 8.78 787785.8 3 0.00 10178192.8 6 2 12 6564881 8.75 APR 2020 APR 2020 CGST NA 787785 8.25 151254 8.78 787785.8 3 0.00 10178192.8 6 3 12 46110025 .74 OCT 2020 OCT 2020 SGST NA 553320 3.09 564386 .71 553320.3 1 0.00 6650910.10 4 12 46110025 .74 OCT 2020 OCT 2020 CGST NA 553320 3.09 564386 .71 553320.3 1 0.00 6650910.10 TOTAL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the State Tax Authorities are fixated on the notion that since the show cause notice has to be issued in a format on the GSTN Portal, the ingredients of the show cause notice containing the detail facts and the charges cannot be uploaded or inserted by them and instead a summary of show cause notice would suffice. 5. Learned counsel for the petitioner has specifically referred to Section 75 (7) to indicate that in no case the amount of tax, interest and penalty demanded can be in the excess of the amounts specified in the notice and no demand shall be confirmed on the grounds other than the grounds specified in the notice. The notice does not contain any specific grounds as such. 6. He submits that what constitutes a proper show cause notice, has been elucidated in the case of Gorkha Security Servies Vrs. Government (NCT of Delhi) reported in (2014) 9 SCC 105, para 21 and 22. He has also relied upon a judgment rendered by the Apex Court in the case of Metal Forging & another Vrs. Union of India & others reported in 2003(2) SCC 36 wherein at para 12 the Apex Court has explained the ingredients of a proper show cause notice. Further reliance has been placed on the judgment render ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er affidavit and defended the impugned notices. According to him, the show cause notice and summary of the show cause notice have been issued in accordance with the JGST Act, 2017 and its rule. Referring to the summary of the show cause notice (Annexure-2), he submits that it is clearly mentioned that petitioner has received payment which it has not disclosed in its return and hence evaded the payment of due tax to the government. The summary of the show cause notice has elaborately stated the violations of the petitioner and is in consonance of Section 73 of the Act. The petitioner cannot be allowed to club the period April 2020 to October 2020 to justify its action. The various returns / abstracts/ certificates such as GSTR-3B and GSTR-7 and GSTR-7A have been framed to ensure that liabilities are properly discharged. Learned counsel for the respondent has further relied upon the statements made at para 23 of the counter affidavit and submitted that the show cause notice issued by the proper officer through the online portal of the GSTN is in the prescribed format DRC-01. The system is designed in a way that the show cause notice is built on standard format and in the summary ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use notice as issued in Form GST DRC-01 in terms of rule 142(1) of the JGST Rule, 2017 (Annexure-2 impugned herein) cannot substitute the requirement of proper show cause notice. 12. It would be profitable to reproduce the opinion of this Court in the case of the same petitioner on the general principles governing the issuance of a proper show cause notice. Para 14, 15 and 17 of the judgment is quoted herein below: 14. A bare perusal of the impugned show-case notice creates a clear impression that it is a notice issued in a format without even striking out any irrelevant portions and without stating the contraventions committed by the petitioner i.e. whether its actuated by reason of fraud or any willful misstatement or suppression of facts in order to evade tax. Needless to say that the proceedings under Section 74 have a serious connotation as they allege punitive consequences on account of fraud or any willful misstatement or suppression of facts employed by the person chargeable with tax. In absence of clear charges which the person so alleged is required to answer, the noticee is bound to be denied proper opportunity to defend itself. This would entail violation of principl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to afford opportunity to the person to deny his guilt and establish his innocence, which he can only do if he is told what the charges leveled against him are and the allegations on which such charges are based. 17. As observed herein above, the impugned notice completely lacks in fulfilling the ingredients of a proper show-cause notice under Section 74 of the Act. Proceedings under Section 74 of the Act have to be preceded by a proper show-cause notice. A summary of show-cause notice as issued in Form GST DRC-01 in terms of Rule 142(1) of the JGST Rules, 2017 (Annexure-2 impugned herein) cannot substitute the requirement of a proper show-cause notice. This court, however, is not inclined to be drawn into the issue whether the requirement of issuance of Form GST ASMT-10 is a condition precedent for invocation of Section 73 or 74 of the JGST Act for the purposes of deciding the instant case. This Court finds that upon perusal of Annexure- 2 which is the statutory form GST DRC-01 issued to the petitioner, although it has been mentioned that there is mismatch between GSTR-3B and 2A, but that is not sufficient as the foundational allegation for issuance of notice under Section 74 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate an action; (ii) the particular penalty/ action which is proposed to be taken. Even if it is not specifically mentioned in the show cause notice, but it can be clearly and safely discerned from the reading thereof that would be sufficient to meet this requirement. 14. We find that the show cause notice is completely silent on the violation or contravention alleged to have been done by the petitioner regarding which he has to defend himself. The summary of show cause notice at annexure-2 though cannot be a substitute to a show cause notice, also fails to describe the necessary facts which could give an inkling as to the contravention done by the petitioner. As noted herein above, the brief facts of the case do not disclose as to which work contract, services were completed or partly completed by the petitioner regarding which he had not reflected his liability in the filed return as per GSTR-3B for the period in question. It needs no reiteration that a summary of show cause notice in Form DRC-01 could not substitute the requirement of a proper show cause notice. At the same time, if a show cause notice does not specify the grounds for proceeding against a person no amount of tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice, the assessee would be precluded from defending the charges in a vague show cause notice. That would entail violation of principles of natural justice. He can only do so, if he is told as to what the charges levelled against him are and the allegations on which such charges are based. Reliance is placed on the opinion of the Constitution Bench of the Apex Court in the case of Khem Chand versus Union of India [AIR 1958 SC 300], which has also been relied upon in the case of Oryx Fisheries P. Ltd. Vs. Union of India reported in (2010) 13 SCC 427 and profitably quoted in our decision rendered in the case of the same petitioner in W.P (T) No. 2444 of 2021 16. We are thus of the considered view that the impugned show cause notice as contained in Annexure-1 does not fulfill the ingredients of a proper show cause notice and amounts to violation of principles of natural justice. The challenge is entertainable in exercise of writ jurisdiction of this Court on the specified grounds as clearly held by the decision of the Apex Court in the case of Magadh Sugar & Energy Ltd. Vrs. State of Bihar & others reported in 2021 SCC Online SC 801, para 24 and 25. Accordingly, the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
