Rosida Sultana Vs State Of Assam And 2 Ors (Gauhati High Court)
Conclusion: The attachment to the Summary of Show Cause Notice in GST DRC-01 was only the Statement of the determination of tax in terms with Section 73 (3) and the same could not substitute the requirement for issuance of the Show Cause Notice by the Proper Officer in terms with Section 73 (1) of the Central or the State Act. Under such circumstances, initiation of the proceedings under Section 73 against the assessee without the Show Cause Notice was bad in law and could not be interfered with.
Held: In the instant case, summary of the Show Cause Notices issued in GST DRC-01 to assessee in the writ petition, there was a mention therein that there was a Show Cause Notice. Respondents held that the said attachment wherein determination of tax was mentioned was the Show Cause Notice. The question therefore arose as to whether the said attachment could be said to be a Show Cause Notice as per the mandate of both the Central Act as well as the State Act and the Rules made therein under. It was held that summary of the Show Cause Notice in GST DRC-01 was 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 Irrespective of issuance of the Summary of the Show Cause Notice, the Proper Officer had to issue a Show Cause Notice to put the provision of Section 73 into motion. The Show Cause Notice to be issued in terms with Section 73 (1) of the Central Act or State Act could not be confused with the Statement of the determination of tax to be issued in terms with Section 73 (3) of the Central Act or the State Act. In the instant writ petitions, the attachment to the Summary of Show Cause Notice in GST DRC-01 was only the Statement of the determination of tax in terms with Section 73 (3). The said Statement of determination of tax could not substitute the requirement for issuance of the Show Cause Notice by the Proper Officer in terms with Section 73 (1) of the Central or the State Act. Under such circumstances, initiation of the proceedings under Section 73 against the assessee in the instant batch of writ petitions without the Show Cause Notice was bad in law and could not be interfered with. The issuance of the Summary of the Show Cause Notice, Summary of the Statement and Summary of the Order did 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. Accordingly, the Impugned Order challenged in the writ petition were in violation of Section 75 (4) as no opportunity of hearing was given as already discussed herein above. Accordingly, the impugned order issued by the respondent was hereby set aside and quashed. IIn the interest of justice, this Court while setting aside the impugned Order-in-Original granted liberty to the respondent authorities to initiate de novo proceedings under Section 73, if deemed fit for the relevant financial year in question.
