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TMI Blog2023 (2) TMI 394X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be issued to them alone - Violation of principles of natural justice - HELD THAT:- Both the Hon'ble Judges of this Court have consistently held that Section 42 of the CGST Act 2017, has to be necessarily adhered to by the respondents. Being a show cause notice, that too when the same has been issued on account of non payment of the GST as per FORM GST DRC-01, this Court cannot entertain this writ petition at this stage. Necessarily the petitioner will have to submit a reply to the impugned show cause notice, raising the contentions that have been raised in this writ petition. On receipt of the same, it is for the respondents to consider it, on merits and in accordance with law. However, the respondents will have to adhere to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The respondents have not adhered to the provisions of Sections 42(3) of the GST Act 2017 as well as 43-A of the very same Act, which makes it clear that the respondents will have to enquire both the buyer (petitioner) as well as the seller. According to the petitioner, since the show cause notice has been issued only to them, the same is arbitrary and illegal. According to the petitioner, the respondents have predetermined the issue in the impugned show cause notice. 4.Learned counsel for the petitioner relies upon the following authorities in support of his contention that enquiry will have to be held by the respondents only after giving notice to the buyer as well as to the seller: 1)W.P. (MD) Nos.2127 of 2021 etc. batch dated 24.02 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, a challenge has been made in this writ petition only to a show cause notice. The petitioner contends that they are not liable to pay the tax as they state that they have already paid the tax to their supplier. However, the respondents, as seen from the impugned show cause notice, have informed the petitioner that the tax amount has not been paid to them either by the buyer (petitioner) or by the supplier. It is also brought to the notice of the petitioner in the impugned show cause notice that the GST registration of the supplier has already been cancelled in the year 2019 and till date, the tax amount has not been paid for the subject supplies. The petitioner relies upon Sections 42(3), 43-A and 16(2) of the GST Act 2017 and also the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the purposes of availing input tax credit by the recipient shall be such as may be prescribed. (4)The procedure for availing input tax credit in respect of outward supplies not furnished under sub-section (3) shall be such as may be prescribed and such procedure may include the maximum amount of the input tax credit which can be so availed, not exceeding twenty per cent of the input tax credit available, on the basis of details furnished by the suppliers under the said sub-section. (5)The amount of tax specified in the outward supplies for which the details have been furnished by the supplier under sub-section (3) shall be deemed to be the tax payable by him under the provisions of the Act. (6)The supplier and the recipi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the supplier in the statement of outward supplies and such details have been communicated to the recipient of such invoice or debit note in the manner specified under Section 37;] (b)he has received the goods or services or both. Explanation For the purposes of this clause, it shall be deemed that the registered person has received the goods or, as the case may be, services (i)where the goods are delivered by the supplier to a recipient or any other person on the direction of such registered person, whether acting as an agent or otherwise, before or during movement of goods, either by way of transfer of documents of title to goods or otherwise; (ii)where the services are provided by the supplier to any person on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o supra has to be necessarily adhered to by the respondents. Being a show cause notice, that too when the same has been issued on account of non payment of the GST as per FORM GST DRC-01, this Court cannot entertain this writ petition at this stage. Necessarily the petitioner will have to submit a reply to the impugned show cause notice, raising the contentions that have been raised in this writ petition. On receipt of the same, it is for the respondents to consider it, on merits and in accordance with law. However, the respondents will have to adhere to the aforementioned Sections and also give due consideration to the decisions of this Court referred to supra, before passing final orders. 9.For the foregoing reasons, this writ petition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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