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TMI Blog2024 (11) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the provisions of Section 73, it emerges that the Show Cause Notice is required to be issued by the proper officer, the statement under Section 73[3] is to be issued by the proper officer as well as the Order under Section 73 [9] is required to be issued by the proper officer. Compliance of the provisions contained in sub-section [1] to sub-section [8] and sub-section [10] to sub-section [11] of Section 73 and sub-rule [1] of Rule 142 are conditions precedent to term an Order passed under sub-section [9] of Section 73 as a valid one. Having regard to the fact that a proper and prior Show Cause Notice under sub-section [1] of Section 73 of the AGST Act, 2017 was not issued along with the Summary of Show Cause Notice in Form GST DRC-01 [Annexure-I to the writ petition] and the Attachment to Determination of Tax [Annexure-II to the writ petition], and in terms of the observations made in the common Judgment and Order dated 26.09.2024 [supra], the impugned Order dated 30.12.2023 [Annexure-IV to the writ petition] is found not sustainable in law and the same deserves to be set aside and quashed. It is accordingly ordered. The petition is disposed off. - HONOURABLE MR. JUSTICE MANI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e along with interest payable thereon under section 50 and a penalty leviable under the provisions of this Act or the rules made thereunder. [2] The proper officer shall issue the notice under sub-section [1] at least three months prior to the time limit specified in sub-section [10] for issuance of order. [3] Where a notice has been issued for any period under sub-section [1], the proper officer may serve a statement, containing the details of tax not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilised for such periods other than those covered under sub-section [1], on the person chargeable with tax. [4] The service of such statement shall be deemed to be service of notice on such person under sub-section [1], subject to the condition that the grounds relied upon for such tax periods other than those covered under sub-section [1] are the same as are mentioned in the earlier notice. [5] The person chargeable with tax may, before service of notice under sub-section [1] or, as the case may be, the statement under sub-section [3], pay the amount of tax along with interest payable thereon under section 50 on the basis of his own ascertainment of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing therein the details of the amount payable. * * * * * 5. Mr. Goyal, learned counsel for the petitioner has referred to a number of other contentions raised and pleaded in this writ petition. Mr. Goyal has further placed reliance on a common Judgment and Order dated 26.09.2024 passed by a co-ordinate Bench of this Court in a batch of writ petition, W.P.[C] no. 3912/2024 and others. 6. Mr. Gogoi, learned Standing Counsel, Finance Taxation Department has submitted that the common Judgment and Order dated 26.09.2024 has been passed after hearing all the sides and some of the observations made therein would cover the case of the petitioner herein. 7. On perusal, it is found that in the batch of writ petition, W.P.[C] no. 3912/2024 and others, the following three numbers of issues came up for consideration :- [i] Whether Show Cause Notices were issued prior to passing the Impugned Order under Section 73 [9] of the State Act? [ii] Whether the determination of tax as well as the Order attached to the Summary of the Show Cause Notice in GST DCR-01 and Summary of the Order in GST DCR-07 can be said to be the Show Cause Notice and Order respectively? [iii] Whether the impugned orders under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t as well as passing of the Order as per the mandate of Section 73 by the Proper Officer. As initiation of a proceedings under Section 73 and passing of an order under the same provision have consequences. The Show Cause Notice, Statement as well as the Order are all required to be authenticated in the manner stipulated in Rule 26 [3] of the Rules of 2017. [D] The Impugned Orders challenged in the writ petitions are in violation of Section 75 [4] as no opportunity of hearing was given as already discussed herein above. [E] The impugned orders challenged in the instant batch of writ petitions, the details of which are given in the Appendix attached to the instant judgment are set aside and quashed. [F] This Court also cannot be unmindful of the fact that it is on account of certain technicalities and the manner in which the impugned orders were passed, this Court interfered with the impugned orders and hence set aside and quashed the same. It is also relevant to take note of that the respondent authorities were under the impression that issuance of attachment of the determination of tax which was attached to the Summary of the Show Cause Notice would constitute a valid Show Cause No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Show Cause Notice in Form GST DRC-01 [Annexure-I to the writ petition] and the Attachment to Determination of Tax [Annexure-II to the writ petition], and in terms of the observations made in the common Judgment and Order dated 26.09.2024 [supra], the impugned Order dated 30.12.2023 [Annexure-IV to the writ petition] is found not sustainable in law and the same deserves to be set aside and quashed. It is accordingly ordered. 13. In view of the above determination, it appears not necessary to dilate on the other grounds raised on behalf of the petitioner. 14. It would, however, be open for the respondent authorities to proceed with the matters in accordance with the observation made in Paragraph 29[F] of the common Judgment and Order dated 29.06.2024. It is further observed that in the event the respondent authorities proceed in accordance with the provisions of Section 73 [1] of the AGST Act, 2017 by issuing a valid Show Cause Notice and in compliance with the other ancillary legal provisions; and in terms of Paragraph 29 [F] of the common Judgment and Order dated 26.09.2024, it would be open for the petitioner to raise all the grounds available under the law. 15. This order dispose ..... X X X X Extracts X X X X X X X X Extracts X X X X
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