Vadakkoot Chackoo Devassy(Prop of: Sadhu Hardware) Vs Assistant State Tax Officer
Date: December 20, 2023
Subject Matter
Matter remanded as no official copy of the notices was served physically or uploaded on the GST portal
Summary
In this case, the petitioner filed a writ petition seeking the quashing of certain orders passed by the tax authority, arguing that they were barred by limitation and against the principles of natural justice. The petitioner claimed that no official physical copy of the notices was issued to them and that their GST registration had been cancelled before the notices were uploaded in the GST portal. The court found merit in the petitioner's submissions and held that there was a violation of natural justice, consequently setting aside the impugned assessment order and remanding the matter back to the assessing authority for fresh consideration.
FULL TEXT OF THE JUDGMENT/ORDER OF KERALA HIGH COURT
The present writ petition has been filed seeking the following reliefs:
“i. issue a WRIT OF CERTIORARI or any other appropriate writ, order or direction under Article 226 of the Constitution of India, quashing Exhibit P5 order and P6 summary of order in Form GST DRC-07 passed by the 1st respondent as barred by limitation and against the principle of natural justice, or pass such further or other orders as may deem fit and proper in the circumstances of this case, and render justice;
ii. direct to invoke powers under section 172 of the CGST/SGST Act, 2017 to remove the difficulties faced by the taxable persons to avail input tax credit which was claimed through the returns filed belatedly without any specific time limit;
iii. to declare section 16(4) of the CGST/SGST Act, 2017 as ultravies to section 16(1) and 16(2) of the CGST Act as well as unconstitutional.”
2. Notice in Form GST ASMT-10 under Rule 99(1) of the Central Goods and Services Tax Rules, 2017/State Goods and Services Tax Rules, 2017 was issued to the petitioner on 29.9.2023 and on the very next day, a show cause notice under Section 73 of the Central Goods and Services Tax Act, 2017/State Goods and Services Tax Act, 2017 came to be issued. Learned counsel for the petitioner submits that no official copy of the notice either in GST ASMT-10 or the show cause notice dated 30.9.2023 under Section 73 was issued to the petitioner physically and the same were uploaded in the GST portal. Since the petitioner’s registration had been cancelled before issuance of the said notices, the petitioner did not file reply to the said show cause notices. Otherwise, the petitioner was not granted any time in the notice so issued in GST ASMT-10 and therefore, there has been violation of the principles of natural justice in passing the assessment order, Ext.P5.
3. Prima facie, I find some substance in the submission advanced by the learned counsel for the petitioner. Notice in Ext.P2 disclosed that it is dated 29.9.2023 and on the very next day, Ext.P3 notice under Section 73 was issued. The petitioner was not afforded any time for filing reply to the notice in GST ASMT-10.
4. It is also not in dispute that the petitioner’s GST registration was cancelled before the said notices were uploaded in the GST portal.
5. In view thereof, I find that there is violation of the principles of natural justice and, therefore, the impugned assessment order, Ext.P5, is unsustainable and the same is hereby set aside. The matter is remanded back to the file of the assessing authority, 1st respondent, to pass fresh a order. The petitioner is permitted to file reply to the show notice dated 30.9.2023, Ext.P3, within a period of three (3) days from today. If the petitioner files reply as above, he shall be afforded an opportunity before finalising the fresh assessment and order shall be passed as directed above by the assessing authority. The petitioner-assessee will not take any ground regarding the limitation in finalising the assessment for the assessment year 2017-18.
With the aforesaid observations and directions, the present writ petition stands finally disposed of. Pending interlocutory application, if any, in the present writ petition stands dismissed.