Case Law Details
Marg Erp Limited Vs Commissioner of Delhi Goods and Service Tax & Anr. (Delhi High Court)
The Hon’ble Delhi High Court in Marg Erp Ltd v. Commissioner of Delhi Goods and Service Tax & Anr. [W.P.(C) 872/2023 dated February 3, 2023] has set aside the demand order passed by the Revenue Department on the ground that such order was unsigned. Held that, an unsigned notice/order cannot be considered as an order and hence cannot be sustained. Further, directed the assessee to submit the reply within 2 weeks and directed the Revenue Department to pass the fresh orders after the assessee has been heard.
Facts:
A SCN dated February 6,2021 (“the Impugned SCN”) was issued by the Revenue Department (“the Respondent”) to Marg Erp Ltd. (“the Petitioner”) calling for the Petitioner to submit its evidence in support of its claims, wherein no specific allegation was mentioned that was needed to be addressed. Consequently, an order dated June 7,2022 (“the Impugned Order”) was issued under Section 73 of the Central Goods and Services Act 2017 (“the CGST Act”) demanding the total raise of INR 49,26,623/-. Prior to the Impugned SCN, another notice dated January 1, 2021 was issued, pointing out the excess Input Tax Credit (“ITC”) and called upon the Petitioner to appear before it on January 15, 2021. The Impugned SCN as well as the Impugned Order are unsigned.
Being aggrieved, this Petition has been filed.
The Respondent submitted that the Impugned SCN is relatable to the details as provided in the notice dated January 1, 2021.
Issue:
Whether the unsigned Impugned Order is sustainable?
Held:
The Hon’ble Delhi High Court in W.P.(C) 872/2023 held as under:
- Observed that, the Impugned SCN did not spell out the allegation, which the Petitioner has to address.
- Stated that, the purpose of a SCN is to enable the Petitioner to respond to the allegations made against it. However, the Impugned SCN is vague and simply mentions that there may be issues with unpaid taxes, incorrect refunds, or misuse of ITC, without giving any specific details or reasons for taking any action.
- Relied on the judgement in the earlier matter of Railsys Engineers Private Ltd. & Anr. v. The Additional Commissioner of Central Goods and Services Tax [W.P.(C) 4712/2022 dated July 21, 2022] wherein it was held that unless digital signature is put by the issuing authority, an order will have no effect in the eyes of law and stated that, the Impugned Order cannot be sustained as it is unsigned.
- Further relied on the judgement of Hon’ble Bombay High Court in Ramani Suchit Malushte v. Union of India and Ors. [W.P.(C) 9331/2022 dated September 21, 2022] wherein it was held that, an unsigned notice or an order cannot be considered as an order.
- Set aside the Impugned Order.
- Stated that, the Impugned SCN need not be set aside as it is confined to the issues mentioned in the notice dated January 1,2021.
- Permitted the Petitioner to submit the reply within 2 weeks.
- Directed the Respondent to pass the fresh orders after providing the opportunity of hearing.
FULL TEXT OF THE JUDGMENT/ORDER OF DELHI HIGH COURT
CM APPL. 3390/2023 (for exemption from filing certified copies of orders)
1. Exemptions allowed, subject to all just exceptions.
2. The application stands disposed of.
W.P.(C) 872/2023 & CM APPL. 3391/2023 (for stay of demand)
3. Issue notice.
4. Learned Counsel for the respondent accepts notice.
5. The petitioner has filed the present petition, impugning an order dated 07.06.2022, under Section 73 of the Central Goods and Services Tax Act, 2017, passed by the Adjudicating Authority (Assistant Commissioner), raising a total demand of ₹ 49,26,623/-.
6. Prior to the said order, the respondent had issued a Show Cause Notice dated 06.02.2021, calling upon the petitioner to furnish a reply along with supporting documents as evidence in Neutral Citation Number 2023/DHC/000905 support of its claim.
7. The allegation made in the said Show Cause Notice is set out below:
“It has come to my notice that tax due has not been paid or short paid or refund has been released erroneously or input tax credit has been wrongly availed or utilized by you or the amount paid by you through the above referred application for intimation of voluntary payment for the reasons and other details mentioned in annexure for the aforesaid tax period”
8. It is apparent that the Show Cause Notice does not spell out the allegation which is required to be addressed by the petitioner.
9. The purpose of Show Cause Notice is to enable the noticee to respond to the allegations. In the present case, it is seen that it is a general notice stating that tax has not been paid or short paid or refund has been released erroneously or Input Tax Credit has been wrongly availed or utilised. This, obviously, provides no clue as to the reasons for proposing any action.
10. It is pointed out that, neither the impugned order dated 07.06.2022 nor the Show Cause Notice is signed by the concerned Officer.
11. Learned Counsel for the respondent states that, prior to the Show Cause Notice dated 06.02.2021, the concerned authority had issued a notice dated 01.01.2021, pointing out that there was some differences/ excess ITC and calling upon the petitioner to attend the office on 15.01.2021.
12. It is noted that this notice is also unsigned.
13. According to the learned Counsel for the respondent, the Show Cause Notice is relatable to the details as provided in the notice dated 01.01.2021.
14. Concededly, the impugned order cannot be sustained as it is unsigned. This issue is covered by the decision of a coordinate Bench of this Court in Railsys Engineers Private Limited & Anr. v. The Additional Commissioner of Central Goods and Services Tax (Appeals-II) & Anr.: W.P.(C) 4712/2022; decided on 21.07.2022.
15. An unsigned notice or an order cannot be considered as an order as has been held by the Bombay High Court in Ramani Suchit Malushte v. Union of India and Ors.: W.P.(C) 9331/2022; decided on 21.09.2022.
16. In view of the above, the impugned order dated 07.06.2022 is set aside.
17. Since it is stated that the Show Cause Notice dated 06.02.2021 should be confined to the discrepancies as pointed out in the notice dated 01.01.2021, this Court does not consider it apposite to set aside the said Show Cause Notice but to provide an opportunity to the petitioner to file a reply to the notice dated 01.01.2021 and 06.02.2021. The said reply be filed within a period of two weeks from today.
18. The concerned authority shall pass an order afresh after affording the petitioner, an opportunity to be heard.
19. The petition along with other pending applications stands disposed of in the aforesaid terms.
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