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TMI Blog2023 (11) TMI 1205X X X X Extracts X X X X X X X X Extracts X X X X ..... in Section 73 for the noticee to respond but it is obvious that the statute contemplates affording of reasonable opportunity to reply to show cause notice. Thus, it is evident that the time gap provided between show cause notice dated 03.09.2022 (Annexure P/2) and impugned order dated 12.09.2022 (Annexure P/3) was only 8 clear days which in the considered opinion of this Court falls desperately short of satisfying the concept of reasonable opportunity of being heard. Another ground raised by counsel for petitioner is that the statement prescribed u/S. 73(2) has not been afforded to petitioner thereby keeping the petitioner in dark as regards the foundational material which persuaded the show cause notice issuing Authority to form a prima facie opinion against petitioner - From bare perusal of the impugned show cause notice (Annexure P/2) and order (Annexure P/3), it is not evident as to whether show cause notice was issued in cases covered by Section 73(1) or not - Thus, it would be appropriate to leave this aspect for the competent authority to decide it at its level. The third ground raised by the petitioner is that the impugned show cause notice (Annexure P/2) is not p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 4.1 A further ground is raised that show cause notice dated 03.09.2022 (Annexure P/2) is not self-contained inasmuch as failing to inform about material of adverse nature which constituted the foundation of show cause notice thereby disabling the petitioner to respond. In this manner, it is urged that principle of audi alteram partem stood violated. Lastly, it is urged that opportunity of personal hearing was also not afforded. 4.2 This Court thus restricts its adjudicatory scrutiny to the aforesaid two grounds thereby leaving it to petitioner to raise the other ground not decided by this Court, if occasion arises; and, if law permits before the appropriate forum. 5. A bare perusal of show cause notice u/S. 73 of CGST Act reveals that the same was issued on 03.09.2022 affording opportunity to petitioner to make payment of tax with admissible penalty within 30 days. For ready reference and convenience, relevant Section 73 of CGST Act is reproduced below : 73. Determination of tax not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilised for any reason other than fraud or any wilful-misstatement or suppression of facts .-(1) Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided for in sub-section (1) in respect of such amount which falls short of the amount actually payable. (8) Where any person chargeable with tax under subsection (1) or sub-section (3) pays the said tax along with interest payable under section 50 within thirty days of issue of show cause notice, no penalty shall be payable and all proceedings in respect of the said notice shall be deemed to be concluded. (9) The proper officer shall, after considering the representation, if any, made by person chargeable with tax, determine the amount of tax, interest and a penalty equivalent to ten per cent. of tax or ten thousand rupees, whichever is higher, due from such person and issue an order. (10) The proper officer shall issue the order under subsection (9) within three years from the due date for furnishing of annual return for the financial year to which the tax not paid or short paid or input tax credit wrongly availed or utilised relates to or within three years from the date of erroneous refund. (11) Notwithstanding anything contained in sub-section (6) or sub-section (8), penalty under sub-section (9) shall be payable where any amount of self-assessed tax or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terest and penalty specified in the show cause notice is statutorily prescribed to be thirty days in Section 73 (8), the reasonable period within which show cause notice is to be responded to, ought to be treated as thirty days. 7. In view of aforesaid findings, it is evident that the time gap provided between show cause notice dated 03.09.2022 (Annexure P/2) and impugned order dated 12.09.2022 (Annexure P/3) was only 8 clear days which in the considered opinion of this Court falls desperately short of satisfying the concept of reasonable opportunity of being heard. 8. Another ground raised by counsel for petitioner is that the statement prescribed u/S. 73(2) has not been afforded to petitioner thereby keeping the petitioner in dark as regards the foundational material which persuaded the show cause notice issuing Authority to form a prima facie opinion against petitioner. 8.1 The obligation of the Proper Officer to serve a statement on the noticee as per Section 73(3) is only in such cases which are not covered u/s. 73(1). 8.2 From bare perusal of the impugned show cause notice (Annexure P/2) and order (Annexure P/3), it is not evident as to whether show cause notice w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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