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TMI Blog2022 (8) TMI 975X X X X Extracts X X X X X X X X Extracts X X X X ..... sed covering the tax period from July, 2017 to March, 2018. There is no other document to suggest that the petitioner was given due opportunity of hearing, inasmuch as, in the notice issued under notice under Section 73 of the Act, in the column of date time and venue of personal hearing it was indicated by the respondents as NA which means not applicable. This clearly indicates that no opportunity of personal hearing has been given and merely a form has been issued just to cover up the discrepancies committed by the respondent-State. Thus, it clearly transpires that the statutory requirements as enshrined under Section 73 and 75 of the JGST Act has not been followed and as a matter of fact principles of natural justice has also not been followed and thus, both these writ applications are maintainable - the impugned adjudication order in both these writ application are not in accordance with the procedure prescribed in law and deserves to be quashed and set aside on the ground of non-compliance of statutory provisions of the JGST Act and for non-compliance of principle of natural justice. The matter is remitted back to the adjudicating authority to issue a fresh show cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry proceeding by producing relevant documents. However, in terms of Section 70 of the JGST Act, summons were issued to the petitioner with a direction to appear on 3rd April, 2019 along with documents indicated in the summons. Pursuant to the aforesaid summons, petitioner duly appeared and filed requisites documents before Respondent- authorities. Thereafter, summary show cause notice dated 15.05.2019 [in W.P.(T) No. 1527 of 2022)] dated 16.05.2019 [in W.P(T) No. 1526 of 2022)] was issued to the petitioner in Form GST DRC-01. Pursuant to issuance of Form GST DRC-01, straightway, without issuing show-cause and notice of personal hearing, adjudication order under Section 73 (1) of the JGST Act was passed against the petitioner. 5. The specific case of the petitioner is that no show cause notice, summary of show cause notice, adjudication order and summary of order was ever served to the petitioner. As a matter of fact, all of a sudden the bank attachment notice contained in GST DRC-13 under Section 79(1)(c) dated 08.09.2021 was issued to the banker of the petitioner, namely, Bank of India, Branch Mango, Dimna Road by attaching bank account of the petitioner pursuant to Form G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act. 9. Learned counsel further contended that provision of Section 16(2) of the GST Act nowhere stipulates that a dealer would not be entitled to claim ITC in its GSTR-3B return of an amount to the extent which has not been reflected in GSTR-2A statement. It is an admitted fact that till date no notification has been issued prescribing the due date of GSTR-2 and GSTR-3 and, thus, in effect, filing of GSTR-2 and GSTR-3 remains suspended. He further submits that the Central Government amended Rule 61 to the CGST Rules, 2017 vide Notification No. 17/2017-CT dated 27.07.2017 wherein GSTR-3B (current statutory return) was made the statutory return for all tax periods till time limit of implementing GSTR-2 GSTR-3 remains extended. He submits that a press release dated 04.05.2018 by the GST council has indicated that in future there shall be a single return for compliance under GST laws and that till such return is made statutory, status quo of filing GSTR-1 and GSTR-3B shall continue. He submits that in the press release dated 18.10.2018 issued by the GST council it has been specifically clarified that, the furnishing of outward details in Form GSTR-1 by the correspondin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e period from April, 2018 to June 2019 which relates to W.P.(T) No. 1527 of 2022 as there were certain discrepancies in GSTR 3B Return and auto populated GSTR-2A Return. Pursuant to the inspection, the petitioner was directed to appear and produce relevant books of accounts on 05.10.2008. Accordingly, the representative of the petitioner-company duly appeared and submitted the relevant documents. However, in terms of Section 70 of the JGST Act a summons was issued by directing the petitioner to appear on 03.04.2019 along with documents indicated in the summons. Petitioner again appeared on the said date. Thereafter, on 16.05.2019 summary of show cause notice in Form GST DRC-01 was issued to the petitioner. Interestingly, the show cause notice under Section 73 which was issued to the petitioner; in the column date, time and venue of personal hearing, it was mentioned NA which clearly goes to show that the said show cause notice issued under GST DRC-01 was negligently issued and no date, time and venue was mentioned and straightway after issuance of DRC-01, adjudication order under Section 73 of JGST Act was passed and also summary of order dated 18.09.2019 in Form GST DRC-07 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of CCE Vs. Brindavan Beverages (P) Ltd. reported in (2007) 5 SCC 388 relied upon by the petitioner, the Apex Court at para-14 of the judgment has held that if the allegations in the show-cause notice are not specific and are on the contrary, vague, lack details and/or unintelligible i.e. its sufficient to hold that the noticee was not given proper opportunity to meet the allegations indicated in the show-cause notice. We do not agree with the contention of the respondent that the notice ought not to be struck down if in substance it contains the matters which a notice must contain. In order to proceed under the provisions of Section 74 of the Act, the specific ingredients enumerated thereunder have to be clearly asserted in the notice so that the noticee has an opportunity to explain and defend himself. 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 im ..... X X X X Extracts X X X X X X X X Extracts X X X X
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