Case Law Details
Juhi Industries Pvt. Ltd. Vs State of Jharkhand (Jharkhand High Court)
Rule 142(1)(a) of the JGST Rules provides that the summary of show cause notice (SCN) in Form DRC-01 should be issued “along with” the show cause notice under Section 74(1). The word “along with” clearly indicates that in a given case show cause notice as well as summary thereof both have to be issued. As per Rule 142(1)(a) of the JGST Rules, the summary of show cause notice has to be issued electronically to keep track of the proceeding initiated against the registered persona whereas a show cause notice need not necessarily be issued electronically.
This Court in the case of M/S NKAS Services Pvt. Ltd. vs. State of Jharkhand & Ors., passed in W.P.(T) No. 2444 of 2021 in which one of us (Aparesh Kumar Singh J.) was the member, has taken note of the said position of law and has categorically held that Summary of Show Cause Notice in Form DRC-01 is not a substitute of show cause notice under Section 74(1).
In view of the aforesaid facts and the settled preposition of law, the foundation of the proceeding in both the cases suffers from material irregularity and hence not sustainable being contrary to Section 74(1) of the JGST Act; thus, the subsequent proceedings/impugned Orders cannot sanctify the same. Though, the petitioner submitted their concise reply vide letter dated 11-10-2018; the respondent State cannot take benefit of the said action as summary of show cause notice cannot be considered as a show cause notice as mandated under Section 74(1) of the Act. The Respondent in their counter affidavit dated 07-09-2021 have stated that filing of concise reply by the petitioner proves that show-cause notice have been served upon them. As stated herein above, it is well settled that there is no estoppels against statute. A bonafide mistake or consent by the assesse cannot confer any jurisdiction upon the proper officer. The jurisdiction must flow from the statute itself. The rules of estoppels is rule of equity which has no role in matters of taxation.
In the case of UOI Vs.Madhumilan Syntex Pvt.Ltd reported in 1988(3) SCC 348 it is held by the Hon’ble Apex Court that power under the statute cannot be taken away by consent of the parties. In that case the Hon’ble Apex Court was seized with interpretation of Section 11A of the Central Excise Act, 1944 which is pari materia to Section 74 of the JGST Act, hence, the ratio of the said judgment would squarely apply to the these cases.
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