Delhi High Court
M/S Biba Fashion Ltd vs Govt Of Nct Of Delhi And Ors & Ors. on 9 April, 2024
Author: Sanjeev Sachdeva
Bench: Sanjeev Sachdeva
$~77
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 09.04.2024
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W.P.(C) 5200/2024& CM APPLs. 21293-94/2024
M/S BIBA FASHION LTD .... Petitioner
versus
GOVT OF NCT OF DELHI AND ORS & ORS. ..... Respondents
Advocates who appeared in this case:
For the Petitioner: Mr. Dhananjai Shekhawat, Mr. Archit Jain, Mr.
Rishab Singhla and Mr. Sandeep Goyal,
Advocates.
For the Respondents: Mr. Varun Vats, SPC for UOI.
CORAM:-
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
HON'BLE MR. JUSTICE RAVINDER DUDEJA
JUDGMENT
SANJEEV SACHDEVA, J. (ORAL)
1. Petitioner impugns order dated 26.12.2023, whereby the
impugned Show Cause Notice dated 24.09.2023, proposing a demand
of Rs.56,32,814.00 against the Petitioner has been disposed of and a
demand including penalty has been raised against the Petitioner. The
order has been passed under Section 73 of the Central Goods and
Services Tax Act, 2017 (hereinafter referred to as the Act).
2. Issue notice. Notice is accepted by learned counsel appearing
for respondent.
3. With the consent of the parties, petition is taken up for final
disposal today.
4. Learned counsel for Petitioner submits that Petitioner had filed
a detailed reply dated 18.12.2023, however, the impugned order dated
26.12.2023 does not take into consideration the reply submitted by the
Petitioner and is a cryptic order.
5. Perusal of the Show Cause Notice dated 24.09.2023 shows that
the Department has given separate headings i.e., under declaration of
output tax; reconciliation of GSTR-01 with GSRT-09; excess claim
Input Tax Credit ["ITC"]; Scrutiny of ITC availed under ISD; ITC to
be reversed on non-business transactions & exempt supplies; under
declaration of ineligible ITC; and ITC claimed from cancelled dealers,
return defaulters & tax non payers. To the said Show Cause Notice, a
detailed reply was furnished by the petitioner giving disclosures under
each of the heads.
6. The impugned order, however, after recording the narration
records that the reply uploaded by the taxpayer is incomplete, not duly
supported by adequate documents, unclear and unsatisfactory. It states
that "On the basis of reply uploaded by the taxpayer, it has been
observed that the same is incomplete, not duly supported by adequate
documents and unable to clarify the issue. As such, taxpayer is not
entitled to get benefit on the basis of its plain reply which is not
supported with proper calculations/reconciliation and relevant
documents. Since, the reply filed is not clear and satisfactory" The
Proper Officer has opined that the reply is incomplete, not duly
supported by adequate documents, not clear and unsatisfactory.
7. The observation in the impugned order dated 26.12.2023 is not
sustainable for the reasons that the reply dated 18.12.2023 filed by the
Petitioner is a detailed reply. Proper Officer had to at least consider
the reply on merits and then form an opinion. He merely held that the
reply is incomplete, not duly supported by adequate documents, not
clear and unsatisfactory, which ex-facie shows that Proper Officer has
not applied his mind to the reply submitted by the petitioner.
8. Further, if the Proper Officer was of the view that any further
details were required, the same could have been specifically sought
from the Petitioner. However, the record does not reflect that any such
opportunity was given to the Petitioner to clarify its reply or furnish
further documents/details.
9. In view of the above, the impugned order dated 26.12.2023
cannot be sustained, and the matter is liable to be remitted to the
Proper Officer for re-adjudication. Accordingly, the impugned order
dated 26.12.2023 is set aside and the matter is remitted to the Proper
Officer for re-adjudication.
10. Petitioner shall file a reply to the Show Cause Notice within a
period of 30 days from today. Thereafter, the Proper Officer shall re-
adjudicate the Show Cause Notice after giving an opportunity of
personal hearing and shall pass a fresh speaking order in accordance
with law within the period prescribed under Section 75 (3) of the Act.
11. It is clarified that this Court has neither considered nor
commented upon the merits of the contentions of either party. All
rights and contentions of parties are reserved.
12. The challenge to Notification No. 9 of 2023 with regard to the
initial extension of time is left open.
13. Petition is disposed of in the above terms.
SANJEEV SACHDEVA, J
RAVINDER DUDEJA, J
APRIL 09, 2024/vp
