Gauhati High Court
Page No.# 1/5 vs The Union Of India And Ors on 26 May, 2025
Page No.# 1/5
GAHC010089002025
2025:GAU-AS:6670
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2261/2025
AMAN GUPTA
S/O SURESH KUMAR GUPTA AS DESIGNATED PARTNER OF NES
REFRACTORIES LLP NORTH EAST SILLIMANITE UNIT II KAMARKUCHI
SONAPUR KAMRUP ASSAM 782402 ASSAM
VERSUS
THE UNION OF INDIA AND ORS
REP BY THE SECRETARY TO THE GOVT OF INDIA MINISTRY OF FINANCE
DEPTT OF REVENUE NORTH BLOCK NEW DELHI 110001
2:THE STATE OF ASSAM
REP BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM
FIANCE TEXATION DEPTT DEPTT DISPUR GUWAHATI 781006 ASSAM
3:THE COMMISSIONER OF TAXES
STATE GOOD AND SERICE TAX KAR BHAWAN BISHNU PRASAD RAVA
FLYOVER DISPUR GANESGURI GUWAHATI 781006
4:THE ASSISTANT COMMISSIONER OF STATE TAX GUWAHATI
UNIT C ASSAM KAR BHAWAN BISHNU PRASAD RAVA FLYOVER DISPUR
GANESHGURI GUWAHATI 78100
Advocate for the Petitioner : MR. D SARAF, MR. S S GUPTA
Advocate for the Respondent : DY.S.G.I., SC, FINANCE AND TAXATION
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BEFORE
HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY
ORDER
26.05.2025
1. Heard Mr. D. Saraf, learned counsel for the petitioner and Mr. B. Gogoi, learned
Additional Advocate General, Assam for the respondent Nos. 1 to 3.
2. The case of the petitioner herein is that the respondent No. 3 has issued the
summary of show cause notice dated 29.11.2024 without passing any order
under Section 73 (1) of the AGST Act, 2017. It is further case of the petitioner
that he has sought for an opportunity of hearing, however, without giving any
opportunity of hearing, the order dated 28.02.2025 has been passed.
3. Both the learned counsels for the parties submit that similar issue has already
been dealt in Para 29 of the judgment and order (oral) dated 26.09.2024
passed by a Co-ordinate Bench in WP(C) No. 3912/2024 and other connected
petitions (Construction Catalysers Pvt. Ltd. Vs. the State of Assam and 2
others). Accordingly, this writ petition is having similar issue, the determination
made in said Construction Catalysers Pvt. Ltd (supra), shall cover the
present case, more particularly, the conclusion and direction arrived at Para 29.
4. Para 29 of Construction Catalysers Pvt. Ltd (supra), being bone of
contention, is quoted herein below:-
"CONCLUSION
29. On the basis of the above analysis and determination, this Court
disposes of the instant batch of writ petitions with the following observations
and directions:-
(A) The Summary of the Show Cause Notice in GST DRC-01 is not
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a substitute to the Show Cause Notice to be issued in terms with Section
73 (1) of the Central Act as well as the State Act. Irrespective of issuance
of the Summary of the Show Cause Notice, the Proper Officer has to
issue a Show Cause Notice to put the provision of Section 73 into
motion.
(B) The Show Cause Notice to be issued in terms with Section 73
(1) of the Central Act or State Act cannot be confused with the
Statement of the determination of tax to be issued in terms with Section
73 (3) of the Central Act or the State Act. In the instant writ petitions,
the attachment to the Summary of Show Cause Notice in GST DRC-01 is
only the Statement of the determination of tax in terms with Section 73
(3). The said Statement of determination of tax cannot substitute the
requirement for issuance of the Show Cause Notice by the Proper Officer
in terms with Section 73 (1) of the Central or the State Act. Under such
circumstances, initiation of the proceedings under Section 73 against the
petitioners in the instant batch of writ petitions without the Show Cause
Notice is bad in law and interfered with.
(C) It is also noticed that the Show Cause Notice and the
Statement in terms with Section 73 (1) and 73 (3) of both the Central
Act or the State Act respectively are required to be issued only by the
Proper Officer as defined in Section 2 (91). Additionally, the order under
Section 73 (9) is also required to be passed by the Proper officer. The
Summary of the Show Cause Notice, the Summary of the Statement
under Section 73 (3) and the Summary of the Order passed in terms
with Section 73 (9) are to be issued in GST DRC-01, GST DCR-02 and
GST DRC-07 respectively. The issuance of the Summary of the Show
Cause Notice, Summary of the Statement and Summary of the Order do
not dispense with the requirement of issuance of a proper Show Cause
Notice and Statement as well as Page passing of the Order as per the
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mandate of Section 73 by the Proper Officer. As initiation of a
proceedings under Section 73 and passing of an order under the same
provision have consequences. The Show Cause Notice, Statement as well
as the Order are all required to be authenticated in the manner
stipulated in Rule 26 (3) of the Rules of 2017.
(D) The Impugned Orders challenged in the writ petitions are in
violation of Section 75 (4) as no opportunity of hearing was given as
already discussed herein above.
(E) The impugned orders challenged in the instant batch of writ
petitions, the details of which are given in the Appendix attached to the
instant judgment are set aside and quashed.
(F) This Court also cannot be unmindful of the fact that it is on
account of certain technicalities and the manner in which the impugned
orders were passed, this Court interfered with the impugned orders and
hence set aside and quashed the same. It is also relevant to take note of
that the respondent authorities were under the impression that issuance
of attachment of the determination of tax which was attached to the
Summary of the Show Cause Notice would constitute a valid Show Cause
Notice. Under such circumstances, in the interest of justice, this Court
while setting aside the impugned Orders-in-Original as detailed out in the
Appendix, grants liberty to the respondent authorities to initiate de novo
proceedings under Section 73, if deemed fit for the relevant financial
year in question. This Court further observes and directs that the period
from the date of issuance the Summary of the Show Cause Notices upon
the petitioners till the date a certified copy of the instant judgment is
served upon the Proper Officer, be excluded while computing the period
prescribed for passing of the order under Section 73 (10) of the Central
Act as well as the State Act as the case may be."
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5. The issue raised in Construction Catalysers Pvt. Ltd (supra) and the
present petition is similar and therefore, the determination made in
Construction Catalysers Pvt. Ltd (supra), shall accordingly cover the
present petition and as agreed to by the learned counsel for the parties, the
present writ petition stands disposed of by setting aside the summary of
order dated 28.02.2025 and the summary of show cause notice dated
29.11.2024 in terms of the determination and conclusion arrived at para 29
of Construction Catalysers Pvt. Ltd (supra).
JUDGE
Comparing Assistant
