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TMI Blog2025 (2) TMI 1009X X X X Extracts X X X X X X X X Extracts X X X X ..... 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-B to the writ petition] and the Attachment to Determination of Tax [Annexure-B to the writ petition], and in terms of the observations made in the common Judgment and Order [2024 (10) TMI 279 - GAUHATI HIGH COURT], the impugned Order dated 21.08.2024 [Annexure-C to the writ petition] is found not sustainable in law and the same deserve to be set aside and quashed. Conclusion - i) The Summary of the Show Cause Notice in GST DRC-01 is not a substitute to the Show Cause Notice to be issued in terms with Section 73(1) of the Central Act as well as the State Act. ii) The issuanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han the reason of fraud or any wilful-misstatement or suppression of facts to evade tax, he shall serve notice on the person chargeable with tax which has not been so paid or which has been so short paid or to whom the refund has erroneously been made, or who has wrongly availed or utilised input tax credit, requiring him to show cause as to why he should not pay the amount specified in the notice 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [1] The proper officer shall serve, along with the [a] notice issued under section 52 or section 73 or section 74 or section 76 or section 122 or section 123 or section 124 or section 125 or section 127 or section 129 or section 130, a summary thereof electronically in FORM GST DRC-01, [b] statement under sub-section [3] of section 73 or sub-section [3] of section 74, a summary thereof electronically in FORM GST DRC-02, specifying therein the details of the amount payable. * * * * 5. Mr. Mishra, learned counsel for the petitioner has referred to a number of other contentions raised and pleaded in this writ petition. Mr. Mishra 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 to buttress his submission on the point highlighted in paragraph 3 above. 6. Mr. Choudhury, learned Standing Counsel, Finance & Taxation Department has fairly 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer as defined in Section 2 [91]. Additionally, the order under Section 73 [9] is also required to be passed by the Proper Officer. The Summary of the Show Cause Notice, the Summary of the Statement under Section 73 [3] and the Summary of the Order passed in terms with Section 73 [9] are to be issued in GST DRC-01, GST DCR-02 and GST DRC-07 respectively. The issuance of the Summary of the Show Cause Notice, Summary of the Statement and Summary of the Order do not dispense with the requirement of issuance of a proper Show Cause Notice and Statement as well as passing of the Order as per the mandate of Section 73 by the Proper Officer. As initiation of a proceeding 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 Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. 12. Having regard to the fact that a proper and prior Show Cause Notice under sub-section [1] of Section 73 of the AGST Act was not issued along with the Summary of Show Cause Notice in Form GST DRC-01 [Annexure-B to the writ petition] and the Attachment to Determination of Tax [Annexure-B 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 25.08.2024 [Annexure-C to the writ petition] is found not sustainable in law and the same deserve 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 accord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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