Delhi High Court
Pasricha Enterprises Through Its ... vs The Commissioner Delhi Goods And ... on 26 February, 2024
Author: Sanjeev Sachdeva
Bench: Sanjeev Sachdeva
$~51
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 26.02.2024
+ W.P.(C) 2820/2024 & CM APPLs. 11561-62/2024
PASRICHA ENTERPRISES THROUGH ITS PROPRIETOR MR.
DEEPAK PASRICHA ..... Petitioner
versus
THE COMMISSIONER DELHI GOODS AND SERVICES TAX
AND ORS. ..... Respondents
Advocates who appeared in this case:
For the Petitioner: Mr. Rakesh Kumar and Mr. P.K. Gmabhir,
Advocates.
For the Respondents: Mr. Rajeev Aggarwal, ASC with Ms.
Samridhi Vats, Advocate for R-1 and 2.
Mr. J.K. Tripathi, Advocate for R-3.
CORAM:-
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
HON'BLE MR. JUSTICE RAVINDER DUDEJA
JUDGMENT
(SANJEEV SACHDEVA, J. (ORAL)
1. Petitioner impugns order dated 29.12.2023, whereby the show
cause notice dated 26.09.2023, proposing a demand against the
petitioner has been disposed and a demand of Rs. 32,07,115.80/-
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.
2. Learned counsel for the petitioner submits that a detailed reply
dated 13.12.2023 to the show cause notice was filed, however, the
impugned order dated 29.12.2023 does not take into consideration the
reply submitted by the petitioner and is a cryptic order which merely
records that reply was found not satisfactory and devoid of merits.
3. A perusal of the show cause notice shows that the Department
has given specific details of alleged under declaration of output tax,
excess claim Input Tax Credit ["ITC"], under declaration of ineligible
ITC and ITC claim from cancelled dealers, return defaulters and tax
non-payers. To the said show cause notice, a detailed reply dated
13.12.2023 was furnished by the petitioner giving full disclosures
under each of the heads.
4. The impugned order, however, after recording the narration,
records that the reply uploaded by the tax payer is not satisfactory. It
merely states that " neither the taxpayer nor their representative
appeared for personal hearing despite giving sufficient opportunities,
therefore, the undersigned is left with no other option but to issue
ORC-07 on the basis of reply and documents available on the portal.
And whereas, on examination of the reply/documents furnished by the
taxpayer, it has been observed that since the reply is devoid of merits
without any justification or proper reconciliation, the demand raised
in SCN/DRC-01 is hereby upheld along with penalty." The Proper
Officer has opined that the reply is unsatisfactory.
5. The observation in the impugned order dated 13.12.2023 is not
sustainable for the reasons that the reply filed by the petitioner is a
detailed reply.
6. Proper officer had to at least consider the reply on merits and
then form an opinion whether the explanation was sufficient or not. He
merely held that no proper reply/explanation has been received which
ex-facie shows that proper officer has not even looked at the reply
submitted by the petitioner.
7. Further, if the Proper Officer was of the view that reply is
incomplete and further details were required, the same could have
been 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, the order cannot be sustained and the
matter is liable to be remitted to the Proper Officer for re-adjudication.
Accordingly, the impugned order is set aside. The matter is remitted to
the Proper Officer for re-adjudication.
9. As noticed hereinabove, the impugned order records that
petitioner has not furnished the requisite details. Proper Officer is
directed to intimate to the petitioner details/documents, as maybe
required to be furnished by the petitioner within a period of one week
from today. On such intimation being given, petitioner shall furnish
the requisite explanation and documents within one week thereof.
Thereafter, the Proper Officer shall re-adjudicate the show cause
notice within a period of two weeks after giving an opportunity of
personal hearing.
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. Petition is disposed of in the above terms.
SANJEEV SACHDEVA, J
RAVINDER DUDEJA, J
FEBRUARY 26, 2024/vp
