NEUTRAL CITATION
C/SCA/14917/2021 JUDGMENT DATED: 21/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14917 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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M/S VEEKAY VIKRAM AND CO LLP
Versus
STATE OF GUJARAT
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Appearance:
MR HARDIK P MODH(5344) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3
MR. PRANAV TRIVEDI, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
SERVED BY RPAD (N) for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 21/09/2023
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV) 1 Rule returnable forthwith. Mr.Pranav Trivedi, Page 1 of 7 Downloaded on : Tue Sep 26 20:34:01 IST 2023 NEUTRAL CITATION C/SCA/14917/2021 JUDGMENT DATED: 21/09/2023 undefined learned Assistant Government Pleader, waives service of rule on behalf of the respondent - State. With consent of the learned advocates appearing for the respective parties, the matter is taken up for final hearing today. 2 By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed as under:
"(A) This Hon'ble Court may be pleased to declare that impugned summary reports dated 14.11.2018 & 21.02.2019 (Annexure-B) is bad-in-law and liable to be quashed in absence of supply of copy of the Order No. ZA2412180000952 dated 21.02.2019 & Order no. 71 dated 01.10.2018;
(B). This Hon'ble Court may be pleased to issue a writ of Certiorari or Writ in the nature or any other appropriate Writ, calling upon for the records of the petitioner's case related to the impugned summary reports dated 14.11.2018 & 21.02.2019 and after going into legality and proprietary thereafter, quash and set aside the said Summary report dated 14.11.2018 & 21.02.2019 (Annexure-B)"3 Facts in brief are as under:
3.1 The petitioner is a Limited Liability Partnership engaged in manufacturing and supply of pipes and related products.
Page 2 of 7 Downloaded on : Tue Sep 26 20:34:01 IST 2023
NEUTRAL CITATION C/SCA/14917/2021 JUDGMENT DATED: 21/09/2023 undefined 3.2 Challenge is to the orders dated 21.02.2019 and 14.11.2018 issued under Rule 142(5) of the Central Goods & Service Tax Rules, 2017.
3.3 It is the case of the petitioner that it was only during an internal check on the GST portal that the petitioner came across to a summary report showing outstanding demand as under:
Sr Summary Report Issue Involved Tax Penalty Total
No. No.
1 ZA2411180001663 Prima facie the 57,176 57,176 1,14,352
dated 14.11.2018 document
tendered are
found to be
defective
2 ZF240219169809Q Excess ITC 6250033 6250033 68,75,036.3
dated 21.02.2019 claimed
Total 69,89,388.30
4 Mr.Hardik Modh, learned counsel for the petitioner
would submit that these demand are bad, inasmuch as, they are passed in absence of receipt of any prior demand notice or order issued to the petitioner. They are without any show cause notice or notice for personal hearing and without service of any order determining such demand. Page 3 of 7 Downloaded on : Tue Sep 26 20:34:01 IST 2023
NEUTRAL CITATION C/SCA/14917/2021 JUDGMENT DATED: 21/09/2023 undefined 5 In light of these submissions, learned AGP has filed two affidavits-in-reply in the aforesaid petition. 6 In context of the order dated 14.11.2018, the deponent of the affidavit i.e. the Assistant Commissioner, Unit-33, Kadi, states that the order 14.11.2018 was pertaining to mobile checking at Dastan Circle at S.P.Ring Road. On primary verification, it was found that the goods were not being transported with valid documents. The statement of the driver was recorded and an order for physical verification was issued since it was found that the goods were being transported without valid documents and show cause notice was issued on 1.10.2018.
6.1 Pursuant to the show cause notice, the tax payer, i.e. the petitioner paid the tax and penalty amount as proposed in cash ledger and tendered the payment receipt of the same. In light of the tax and penalty paid, the goods with conveyance were released on 01.10.2018. Page 4 of 7 Downloaded on : Tue Sep 26 20:34:01 IST 2023
NEUTRAL CITATION C/SCA/14917/2021 JUDGMENT DATED: 21/09/2023 undefined 7 In light of these facts, Mr.Modh, learned counsel, submitted that the prayer in the petition in respect to the challenge to the summary report / order dated 14.10.2018 does not survive and the petition so far as that order is concerned, stands withdrawn. 8 In context of the order dated 21.02.2019, by way of a separate affidavit, the State Tax Officer-II, Unit-Kalol, as stated as under:
"7. I say and submit that on verification of record available with this office in case of M/s. Veekay Vikram & Co LLP (GSTIN: 24AABFV5098C1Z8) for tax period July 2017 to March 2018 a DRC-07 order (Reference No. ZF240219169809Q) under Gujarat Goods and Services Act 2017 has been passed by the State Tax Officer (2), Unit-25, Kalol on 21.02.2019. The notice in form DRC-01 was issued to dealer under section 73 of Gujarat Goods and Service Tax Act-2017 for tax period July - 2017 to March-2018 on 04/12/2018, having reference number ZA2412180000952. Generally online portal shows two or multiple files in attachment for this type of proceedings. The first is the notice in stipulated system generated Performa as per the rules of GST Act and another files in attachment are that files which are uploaded by officer at the time of issuance of notice on online portal. These other files contains the details of grounds of show cause notice and related supporting documents. On verifying for the said notice on GST portal, some other documents of some random dealers are found which are not pertaining to the dealer M/s Veekay Vikram & Co Page 5 of 7 Downloaded on : Tue Sep 26 20:34:01 IST 2023 NEUTRAL CITATION C/SCA/14917/2021 JUDGMENT DATED: 21/09/2023 undefined LLP Even the system generated Performa of SCN, which gets generated automatically while issuance of such notice has not been found there with notice.
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9. Thus, an attempt to communicate abote the said notice has been made by this office by uploading the notice on GST portal and considering Section-169(1)(d) of the Act, the notice had been issued and served through proper method. But here in this case as stted herein above, once reference number of notice (DRC-01 under section-73) is generated, one system generated Performa of the same should generate automatically but here in this case no such system generated notice had got generated due to technical glitch of system. And the other attachments found with notice are of some other documents which are not pertaining to this dealer. So, in these circumstances on which grounds the said notice had been issued was not communicated to the dealer and the order confirming demand of tax and penalty DRC-07 having reference no. ZF24021916989Q Dt. 21/02/2019 had been issued in relation to the said notice.
10. Thus, the above show cause notice issued with some technical glitch and therefore, the undersigned may be permitted to withdraw the Order passed at Page No. 20 with a view to pass a fresh show cause notice with proper procedure."
9 In light of what is stated in the affidavit, wherein it is stated by the deponent that he may be permitted to withdraw the order at page 20, the summary report dated Page 6 of 7 Downloaded on : Tue Sep 26 20:34:01 IST 2023 NEUTRAL CITATION C/SCA/14917/2021 JUDGMENT DATED: 21/09/2023 undefined 21.02.2019 is hereby quashed and set aside with the aforesaid liberty. The petition is partly allowed to the aforesaid extent. Rule is made absolute to the above extent.
(BIREN VAISHNAV, J) (BHARGAV D. KARIA, J) BIMAL Page 7 of 7 Downloaded on : Tue Sep 26 20:34:01 IST 2023