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TMI Blog2024 (7) TMI 1033X X X X Extracts X X X X X X X X Extracts X X X X ..... against the impugned Annexures, could redress his grievances, through his instituting a writ petition before this Court, rather are not satisfied at all. This Court at this stage, finds no merit in the writ petition, and, with the above observations, the same is dismissed. However, liberty reserved to the petitioner to avail the alternative remedy of filing a statutory appeal against the impugned Annexures, before the Appellate Authority concerned - Petition dismissed. - HON'BLE MR. JUSTICE SURESHWAR THAKUR HON'BLE MRS. JUSTICE SUDEEPTI SHARMA Argued by: For the Petitioner : Mr. Deepak Gupta, Advocate. For the Respondent : Mr. Ankur Mittal, Addl. A.G., Haryana with Mr. P.P. Chahar, Sr. DAG, Haryana. SURESHWAR THAKUR, J. 1. Through the instant writ petition, the assessee-petitioner herein seeks the quashing of show cause notice dated 21.05.2024 (Annexure P-1), notice whereof is issued in Form DRC-01 under Section 73 of the Goods and Services Tax Act, 2017 (hereinafter for short refer to as the 'Act of 2017'). The said notice was issued for the financial year 2019-20. The writ petitioner-assessee also seeks the quashing of the subsequent thereto corrigendum dated 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... open defiance to the judgment rendered by the Madras High Court in case titled as M/s Shri Tyres represented by its proprietor Mr. Ramesh Chand No. 28, Ground Floor, Shri Hasti Towers GST Roads, Pallavaram Chennai Versus State Tax Officer, Chromepet Assessment Circle Commercial Tax Department Nandanam, Chennai 600035 , thus it is deemed incumbent to extract the contents of Annexure P-1 and P-2, Annexures whereof are ad verbatim extracted hereinafter. Annexure P-1 DRC-01 RFN : MA060524073416W dated 21/05/2024 Name : A.V. ENTERPRISES Legal Name : VIVEK KUMAR JAIN Address : C-28, Nehru Ground, NIT Faridabad, Haryana, 121001. GSTIN : 06ABUPJ6958P2ZH Email : [email protected] Phone : 9312200556 F.Y. : 2019-20 Show cause notice under Section 73 of HGST/CGST/IGST. FY 2019-20 Brief fact of the case :- Whereas M/s A.V. ENTERPRISES having principal place of business at C-28, Nehru Ground NIT Faridabad, Haryana, 121001 (herein after referred to as the tax payer ) is registered with ward 05, Faridabad (North), Haryana. Whereas the taxpayer is engaged in trading of iron and steel etc. The HSN code available on the portal are 2849, 7301, 8421, 8207,7208. The aforesaid goods are levi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5,775/- (Rs. 52,887/ each in CGST SGST) on supplies which appears to be ineligible for ITC under section 17 (5) of GST. (Refer Annexure B attached). Therefore, it is evident that the said ITC is inadmissible and liable to reversed by the taxpayer. Therefore, Taxpayer is required to pay said amount along with interest u/s 50 (3) and Penalty u/s 73 (1) as under: - Particular IGST CGST SGST Total TAX 0 52887 52887 105775 Interest 0 40824 40824 81647 Penalty 0 10000 10000 20000 Total 0 103711 103711 207422 5. On examination of GST return by the tax payer, it was found that the tax payer has filed GSTR-3B late for the month of December 2019 and hence tax payer is liable to pay interest on delayed payment of cash component of tax in the delayed return as per provision of Section 49 r/w Rule 85 of CGST/SGST Act r/w Section 20 of IGST Act, 2017. Therefore, Taxpayer is required to pay interest u/s 50 (1) as under: - Particular IGST CGST SGST Total TAX 0 0 0 0 Interest 244 0 0 244 Penalty 0 0 0 0 Total 244 0 0 244 6. The provision of section 44 reads as under :- Section 44. Annual return r/w Section 47(2) xxxx xxxx xxxx 7. On perusal of E-Way bill record, it is observed that there is mismatc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he undersigned issued you a show cause notice as dated : 21.05.2024 and due to a calculation error, the two exhibits attached in the two paras in the said notice were incorrect, which are to be read as below :- 2. The para 1.7 shall be read as :- 7. On perusal of E-Way Bill record, it is observed that there is mismatch between E-Way Bill generated and 3B Liability amounting to Rs. 14,98,950/-. The tax payer is required to pay GST with interest and penalty. Sr. No. Particulars (FY 2019-20) Amount (Rs.) A E-Way Bill Total Liability 97,63,104 B GSTR3B Total Liability 82,64,154 A-B Mis-Match (E-Way Bill GST 3B Liability) 14,98,950 Further, the above difference is accounted equally in all three heads as under :- Particular IGST CGST SGST Total TAX 499650 499650 499650 1498950 Interest 415189 415189 415189 1245566 Penalty 49965 49965 49965 149895 Total 964804 964804 964804 2894411 The total tax, interest and penalty proposed is of Rs. 28,94,411/- and not 23,54,050/-. 3. Further, in para 2, containing summary of demand, shall be read as :- Particular IGST CGST SGST Total TAX 613936 1594690 1594690 3803315 Interest 500361 1263171 1263171 3026702 Penalty 69965 234707 234707 539379 Total 118 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 142 (1A). Since it was not done, as rightly argued by the learned counsel for the petitioner, the assessment order, dated 31.03.2022, fell foul of law and is liable to be set aside.. 9. Now, in-so-far as the reliance as becomes placed by the learned counsel for the petitioner upon Annexure P-4, is concerned, yet the said reliance as placed thereons, is also a mis-placed reliance. The reason being that, the expostulation of law as set forth in paragraph No. 12 thereof, para whereof becomes extracted hereinafter, does with crisp clarity and lucidity, speak about prejudice emanating to the assessee, thus arising from the evident fact, that the mandatory provisions expressed in Rule 142 of the GST Rules, 2017 became breached by the department, in the latter issuing the show cause notice upon the petitioner-assessee thereins, thus without the apposite complete details being expressed thereins nor such apposite details becoming communicated to the assessee thereins. Contrarily when for reasons hereinafter the said omission is not forthcoming in the instant case. Reiteratedly therebys the expostulation of law as set forth in paragraph No. 12, is completely not applicable to the instant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, as thereupon, but naturally he would become provided an ablest opportunity to contest the materials echoed in the show cause notice. Contrarily, if the fullest intimations besides graphic detailings of the materials rather are not spoken in the show cause notice, thereupon but obviously the assessee is debarred from exercising the fullest opportunity of contesting those materials which are not reflected in the show cause notice, and which he is asked to surprisingly face. In sequel, therebys there would be a gross breach to the principles of Audi Alteram Partem. 23. This Court finds that there is a lot of substance in the aforesaid contention. 24. It is well settled that a quasi-judicial authority, while acting in exercise of its statutory power must act fairly and must act with an open mind while initiating a show cause proceeding. A show cause proceeding is meant to give the person proceeded against a reasonable opportunity of making his objection against the proposed charges indicated in the notice. 25. Expressions like a reasonable opportunity of making objection or a reasonable opportunity of defence have come up for consideration before this Court in the context of several ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... natural justice. As but a natural corollary thereto the exception (supra), as carved in the judgment (supra), whereby on proof thereof, the assessee-petitioner, even without availing the alternative remedy of his appealing against the impugned Annexures (supra), could redress his grievances, through his instituting a writ petition before this Court, rather are not satisfied at all. FINAL ORDER OF THIS COURT. 13. In aftermath, this Court at this stage, finds no merit in the writ petition, and, with the above observations, the same is dismissed. However, liberty reserved to the petitioner to avail the alternative remedy of filing a statutory appeal against the impugned Annexures, before the Appellate Authority concerned. 14. In case the said appeal is time barred, thereupon in case any application, under Section 14 of the Limitation Act, 1963 is appended with the statutory appeal, thereupon valid speaking orders be made thereons by the Appellate Authority concerned and subsequently the appeal be registered and a speaking decision be made thereons but within two months thereafter and after hearing all affected persons concerned. 15. No order as to costs. 16. Since the main case itsel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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