Ravi Enterprises Vs Commissioner, State Tax
Date: February 23, 2023
Subject Matter
Notice under section 73(1) and intimation in form GST DRC-01A together cannot be issued on the same day
Summary
In the present case, the notice under section 73(1) of GST Act and the intimation in form GST DRC-01A was uploaded together on 10-5-2022. In form GST DRC-01A, it was mentioned that petitioner may file his submission by 25-5-2022, while by the notice issued under section 73(1), petitioner was required to file his reply within 30 days. Thus, petitioner was denied a valuable right of filing his submission in response to the intimation in Form GST DRC-01A. Thus, a limited interference is called for in the matter.
Heard learned counsel for the parties.
2. Petitioner is a taxable person registered under the Central & State G.S.T. Act.
3. By means of this writ petition, petitioner has sought the following reliefs:-
| "a. | Issue a writ of certiorari or any other appropriate writ, order or direction in the nature thereof, to quash the ex-parte assessment cum demand Order passed by the Respondent No. 2 dated 28/06/2022 ordering the Petitioner to pay Rs. 803939.46 with penalty and interest and declaring the same to be violative of Article 14 and 19(1) (g) of the Constitution of India as also the principles of natural justice and the SGST Act and the Rules made thereunder. | |
| b. | Issue an appropriate writ of mandamus, order or direction in the nature thereof, directing the Respondents jointly/collectively and their sub-ordinate officers to revive the state of the Petitioner as existed prior to the issuance of the Notices and Final Order by Respondent No. 2 so that the Petitioner can continue its business in an honest way without any fear of unjust proceedings conducted against him. | |
| c. | That if the Respondent wish to levy similar allegations direction be issued to comply mandatorily with all the recognized principles of natural justice, the SGST Act and the rules made thereunder and provide the due opportunity of being heard to the Petitioner at all stages of the proceedings to represent and argue his part and make his submissions thereto and thereafter pass a speaking order in accordance with law." |
4. Petitioner is challenging the order dated 28-6-2022 passed by Deputy Commissioner, State Tax under section 73(9) of Uttarakhand GST/CGST Act, 2017. It is contended that petitioner was denied opportunity to file reply in respect of intimation under section 73 given in Form GST DRC-01A, inasmuch as, the intimation in Form GST DRC-01A was uploaded simultaneously with the show cause notice issued under section 73(1) of the State/Central Goods and Services Tax Act. This, according to learned counsel for petitioner, is impermissible. Attention of this Court is drawn to sub-Rule 1A and sub Rule 2A of Rule 142 of Central Goods and Service Tax Rules, 2017, which are reproduced below:-
"[(1A) The proper officer may, before service of notice to the person chargeable with tax, interest and penalty, under sub-section (1) of Section 73 or sub-section (1) of Section 74, as the case may be, communicate the details of any tax, interest and penalty as ascertained by the said officer, in Part A of FORM GST DRC-01A.
[(2A) Where the person referred to in sub-rule (1A) has made partial payment of the amount communicated to him or desires to file any submissions against the proposed liability, he may make such submission in Part B of FORM GST DRC-01A.]"
5. From scheme of the aforesaid Rules, it is apparent that before issuing notice under section 73, the person chargeable with tax is entitled to an intimation in Form GST DRC-01A so that he may respond to the intimation by filing his reply in part-B of the said form.
6. In the present case, the notice under section 73(1) of GST Act and the intimation in form GST DRC-01A was uploaded together on 10-5-2022. In form GST DRC-01A, it was mentioned that petitioner may file his submission by 25-5-2022, while by the notice issued under section 73(1), petitioner was required to file his reply within 30 days. Thus, petitioner was denied a valuable right of filing his submission in response to the intimation in Form GST DRC-01A. Thus, a limited interference is called for in the matter.
7. Learned Standing Counsel based on written instructions received from Additional Commissioner, State Tax, Dehradun fairly submits that petitioner was not given reasonable opportunity of having his say in the matter and that matter can be remanded to the Competent Authority.
8. For the aforesaid reasons, the impugned order dated 28-6-2022 is quashed. The writ petition is allowed and the matter is remanded back to the Competent Authority. Petitioner may file his reply to the intimation in Form GST DRC-01A, within two weeks from today. The Competent Authority shall consider the reply, if filed within stipulated time, within two weeks thereafter. The Competent Authority shall be at liberty to issue fresh show cause notice under section 73(1) of Uttarakhand Goods and Service Tax Act, if need be.
9. In case petitioner fails to submit his reply to the intimation in Form GST DRC-01A within stipulated time, then the GST authorities will be at liberty to proceed in the matter, as per law.
10. Let a certified copy of this order be issued within 24 hours.