Delhi High Court
Sandeep Jain Proprietor Of M/S Nandi ... vs The Union Of India Revenue Secretary, ... on 27 February, 2024
Author: Sanjeev Sachdeva
Bench: Sanjeev Sachdeva
$~46
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 27.02.2024
+ W.P.(C) 2796/2024 & CM APPL. 11427-28/2024
SANDEEP JAIN PROPRIETOR OF
M/S NANDI POLYCHEM ..... Petitioner
versus
THE UNION OF INDIA REVENUE SECRETARY,
MINISTRY OF FINANCE & ORS. ..... Respondents
Advocates who appeared in this case:
For the Petitioner Mr. Rajesh Jain, Mr. Virag Tiwari, Mr. V.K. Jain,
Mr. Ramashish and Ms. Tanya Saraswat, Advocates
For the Respondents: Ms. Vinish Phoghat, Standing Counsel for UOI/R-1
Mr. Rajeev Aggarwal, ASC 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 30.12.2023, whereby the show
cause notice dated 23.09.2023, proposing a demand against the
petitioner has been confirmed and a demand of Rs. 10,03,08,628.00/-
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 20.10.2023 to the show cause notice was filed on 23.10.2023.
He further submitted that subsequent to the said reply Petitioner filed
a DRC-06 on 11.12.2023, whereby the petitioner had given party-wise
details and return filing status. Further, on 21.12.2023 petitioner filed
another reply reiterating the submissions made by him on 23.10.2023
and 11.12.2023. However, the impugned order dated 29.12.2023 does
not take into consideration the replies 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, detailed replies dated
23.10.2023, 11.12.2023 and 21.12.2023 were 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 "However, during the personal hearing, the
taxpayer reiterated the contents of the reply filed in form DRC-06. On
scrutiny of the same, it has been observed that the same is incomplete,
not duly supported by adequate documents and unable to clarify the
issue. Since, the reply filed is not clear and satisfactory, the demand
of tax and interest conveyed via DRC-01 is confirmed, with the
direction to deposit the amount mentioned in DRC-07 within one
month from the date of receipt of this demand notice, failing which
recovery proceedings w/s 79 of CGST Act will be initiated and the
actions as per law will be initiated without further reference." The
Proper Officer has opined that the reply is unsatisfactory.
5. The observation in the impugned order dated 30.12.2023 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 dated 30.12.2023 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. The challenge to Notification No.9 of 2023 is left open.
12. Petition is disposed of in the above terms.
SANJEEV SACHDEVA, J
FEBRUARY 27, 2024/rs RAVINDER DUDEJA, J
