Delhi High Court
Oriental Trimex Export Pvt. Ltd. vs Commissioner Of Delhi Goods And ... on 29 May, 2024
Author: Sanjeev Sachdeva
Bench: Sanjeev Sachdeva
$~37
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 29.05.2024
+ W.P.(C) 8019/2024 & CM APPL. 32988/2024
ORIENTAL TRIMEX EXPORT PVT. LTD. ..... Petitioner
versus
COMMISSIONER OF DELHI GOODS
AND SERVICES TAX & ANR. ..... Respondents
Advocates who appeared in this case:
For the Petitioner: Mr. Rajesh Mahna, Mr. Ramanand Roy, Mr.
Mayank Kouts, Mr. Shiva Narang and Mr. Samhir
Chattarat, Advocates
For the Respondents: Mr. Rajeev Aggarwal, ASC with Mr. Prateek
Badhwar, Ms. Shaguftha H. Badhwar, Ms. Samridhi
Vats, Advocates.
CORAM:-
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
HON'BLE MR. JUSTICE RAVINDER DUDEJA
JUDGMENT
SANJEEV SACHDEVA, J. (ORAL)
1. Petitioner impugns order dated 29.04.2024 whereby the Show
Cause Notice dated 02.12.2023 proposing a demand of Rs.
3,11,54,338.00/- against the petitioner has been disposed of and a
demand including penalty has been created 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 15.12.2023. He submits that a reminder notice
was issued to the Petitioner on 04.03.2024 which was also duly
replied to by the Petitioner on 02.04.2024. However, the impugned
order dated 29.04.2024 does not take into consideration the reply
submitted by the Petitioner and is a cryptic order.
4. Perusal of the Show Cause Notice dated 02.12.2023 shows that
the Department has raised grounds under separate headings i.e.,
excess claim of Input Tax Credit ["ITC"]: Scrutiny of ITC availed;
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 response under each of the heads with
supporting documents.
5. The impugned order, however, after recording the narration
merely records that the tax payer has submitted incomplete supporting
documents on the GST Portal in support of availing the benefit of
cancelled dealer. It states that "In response to the SCN issued to the
taxpayer to submit reply/explanation alongwith the relevant
documents, it has been observed that the taxpayer has submitted the
supporting incomplete documents on GST Portal in support of
availing the benefit of cancelled dealer. Hence the Proper Officer is
left with no other option but to proceed for DRC-07against the
taxpayer with the direction to deposit the same at earliest. Now as per
GST Act, 2017 DRC-07 is hereby issued." The Proper Officer has
opined that incomplete supporting documents have been submitted on
the GST Portal in support of availing the benefit of cancelled dealer.
6. The observation in the impugned order dated 29.04.2024 is not
sustainable for the reasons that the reply dated 15.12.2023 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 that the tax payer has submitted
incomplete supporting documents on the GST Portal in support of
availing the benefit of cancelled dealer which ex-facie shows that the
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 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, the impugned order dated 29.04.2024
cannot be sustained and is set aside. The Show Cause Notice is
remitted to the Proper Officer for re-adjudication.
9. Petitioner may file a further 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.
SANJEEV SACHDEVA, J
MAY 29, 2024 RAVINDER DUDEJA, J
'rs'
