Delhi High Court
Kalpatru Projects International ... vs Goods And Service Tax Officer (Gsto) ... on 24 April, 2024
Author: Sanjeev Sachdeva
Bench: Sanjeev Sachdeva
$~66
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 24.04.2024
W.P.(C) 5728/2024 & CM APPLs. 23602-03/2024
KALPATRU PROJECTS INTERNATIONAL LIMITED (EARLIER
KNOWN AS JMC PROJECTS (INDIA) LIMITED) ..... Petitioner
versus
GOODS AND SERVICE TAX OFFICER (GSTO) WARD 49, 52
AND 53 & ANR. ..... Respondents
Advocates who appeared in this case:
For the Petitioner: Mr. Yogendra Aldak, Mr. Agrim Arora and Mr.
Sumit Khadaria, Advocates.
For the Respondent: Mr. Umesh K. Burnwal, SPA with Mr. Parul
Sagar, Advocate for R-2.
CORAM:-
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
HON'BLE MR. JUSTICE RAVINDER DUDEJA
JUDGMENT
SANJEEV SACHDEVA, J. (ORAL)
1. Petitioner impugns order dated 28.12.2023, whereby the
impugned Show Cause Notice dated 24.09.2023, proposing a demand
of Rs. 7,86,84,337.00 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. With the consent of the parties, petition is taken up for
final disposal today.
3. Learned counsel for Petitioner submits that Petitioner had filed
a detailed reply dated 07.11.2023, however, the impugned order dated
28.12.2023 does not take into consideration the reply submitted by the
Petitioner and is a cryptic order.
4. 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; excess claim of Input Tax Credit ["ITC"]; scrutiny of ITC
availed, and ITC claimed from cancelled dealers, return defaulters and
tax nonpayers. To the said Show Cause Notice, a detailed reply was
furnished by the petitioner giving disclosures under each of the heads.
5. The impugned order, however, after recording the narration
records that the reply uploaded by the taxpayer is not found to be
satisfactory. It states that "And whereas, in response to the DRC-01.
the Taxpayer submitted his reply in DRC-06 and the reply of the
registered person, as well as data available on GST Portal has been
checked/examined and the reply/submission of the Taxpayer is not
found to be satisfactory. **** Now, since No further additional
reply/explanation has been received from the taxpayer despite
sufficient and repeated opportunities, which indicate that the taxpayer
has nothing to say in the matter. In view of aforesaid circumstances,
the undersigned is left with no other option to create demand ex-pane,
in accordance with the provisions of CGST/ DGST Act & Rules,
2017." The Proper Officer has opined that the reply is not found to be
satisfactory and since no further additional reply/explanation has been
received from the taxpayer a demand ex-parte is being created.
6. The observation in the impugned order dated 28.12.2023 is not
sustainable for the reasons that the reply dated 07.11.2023 filed by the
Petitioner is a detailed reply with supporting documents. Proper
Officer had to at least consider the reply on merits and then form an
opinion. He merely held that the reply is not found to be satisfactory,
which ex-facie shows that Proper Officer has not applied his mind to
the reply submitted by the petitioner.
7. Further, if the Proper Officer was of the view that any further
details or documents 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.
8. In view of the above, impugned order dated 28.12.2023 cannot
be sustained, and the matter is liable to be remitted to the Proper
Officer for re-adjudication. Accordingly, impugned order dated
28.12.2023 is set aside and the matter is remitted to the Proper Officer
for re-adjudication.
9. 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.
10. 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.
11. The challenge to Notification No. 9 of 2023 with regard to the
initial extension of time is left open.
12. Petition is disposed of in the above terms.
SANJEEV SACHDEVA, J
RAVINDER DUDEJA, J
APRIL 24, 2024/vp
