Gujarat High Court
M/S Veekay Vikram And Co Llp vs State Of Gujarat on 21 September, 2023
Bench: Bhargav D. Karia
NEUTRAL CITATION
C/SCA/14917/2021 JUDGMENT DATED: 21/09/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14917 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
M/S VEEKAY VIKRAM AND CO LLP
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR HARDIK P MODH(5344) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3
MR. PRANAV TRIVEDI, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
SERVED BY RPAD (N) for the Respondent(s) No. 2,3
==========================================================
CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 21/09/2023
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)
1 Rule returnable forthwith. Mr.Pranav Trivedi,
NEUTRAL CITATION
C/SCA/14917/2021 JUDGMENT DATED: 21/09/2023
undefined
learned Assistant Government Pleader, waives service of
rule on behalf of the respondent - State. With consent of
the learned advocates appearing for the respective
parties, the matter is taken up for final hearing today.
2 By way of this petition under Article 226 of the
Constitution of India, the petitioner has prayed as under:
"(A) This Hon'ble Court may be pleased to declare
that impugned summary reports dated 14.11.2018 &
21.02.2019 (Annexure-B) is bad-in-law and liable to
be quashed in absence of supply of copy of the
Order No. ZA2412180000952 dated 21.02.2019 &
Order no. 71 dated 01.10.2018;
(B). This Hon'ble Court may be pleased to issue a
writ of Certiorari or Writ in the nature or any other
appropriate Writ, calling upon for the records of the
petitioner's case related to the impugned summary
reports dated 14.11.2018 & 21.02.2019 and after
going into legality and proprietary thereafter, quash
and set aside the said Summary report dated
14.11.2018 & 21.02.2019 (Annexure-B)"
3 Facts in brief are as under:
3.1 The petitioner is a Limited Liability Partnership
engaged in manufacturing and supply of pipes and
related products.
NEUTRAL CITATION
C/SCA/14917/2021 JUDGMENT DATED: 21/09/2023
undefined
3.2 Challenge is to the orders dated 21.02.2019 and
14.11.2018 issued under Rule 142(5) of the Central
Goods & Service Tax Rules, 2017.
3.3 It is the case of the petitioner that it was only during
an internal check on the GST portal that the petitioner
came across to a summary report showing outstanding
demand as under:
Sr Summary Report Issue Involved Tax Penalty Total
No. No.
1 ZA2411180001663 Prima facie the 57,176 57,176 1,14,352
dated 14.11.2018 document
tendered are
found to be
defective
2 ZF240219169809Q Excess ITC 6250033 6250033 68,75,036.3
dated 21.02.2019 claimed
Total 69,89,388.30
4 Mr.Hardik Modh, learned counsel for the petitioner
would submit that these demand are bad, inasmuch as,
they are passed in absence of receipt of any prior demand
notice or order issued to the petitioner. They are without
any show cause notice or notice for personal hearing and
without service of any order determining such demand.
NEUTRAL CITATION
C/SCA/14917/2021 JUDGMENT DATED: 21/09/2023
undefined
5 In light of these submissions, learned AGP has filed
two affidavits-in-reply in the aforesaid petition.
6 In context of the order dated 14.11.2018, the
deponent of the affidavit i.e. the Assistant Commissioner,
Unit-33, Kadi, states that the order 14.11.2018 was
pertaining to mobile checking at Dastan Circle at
S.P.Ring Road. On primary verification, it was found that
the goods were not being transported with valid
documents. The statement of the driver was recorded and
an order for physical verification was issued since it was
found that the goods were being transported without
valid documents and show cause notice was issued on
1.10.2018.
6.1 Pursuant to the show cause notice, the tax payer, i.e.
the petitioner paid the tax and penalty amount as
proposed in cash ledger and tendered the payment
receipt of the same. In light of the tax and penalty paid,
the goods with conveyance were released on 01.10.2018.
NEUTRAL CITATION
C/SCA/14917/2021 JUDGMENT DATED: 21/09/2023
undefined
7 In light of these facts, Mr.Modh, learned counsel,
submitted that the prayer in the petition in respect to the
challenge to the summary report / order dated
14.10.2018 does not survive and the petition so far as
that order is concerned, stands withdrawn.
8 In context of the order dated 21.02.2019, by way of a
separate affidavit, the State Tax Officer-II, Unit-Kalol, as
stated as under:
"7. I say and submit that on verification of record
available with this office in case of M/s. Veekay
Vikram & Co LLP (GSTIN: 24AABFV5098C1Z8) for
tax period July 2017 to March 2018 a DRC-07 order
(Reference No. ZF240219169809Q) under Gujarat
Goods and Services Act 2017 has been passed by the
State Tax Officer (2), Unit-25, Kalol on 21.02.2019.
The notice in form DRC-01 was issued to dealer
under section 73 of Gujarat Goods and Service Tax
Act-2017 for tax period July - 2017 to March-2018
on 04/12/2018, having reference number
ZA2412180000952. Generally online portal shows
two or multiple files in attachment for this type of
proceedings. The first is the notice in stipulated
system generated Performa as per the rules of GST
Act and another files in attachment are that files
which are uploaded by officer at the time of issuance
of notice on online portal. These other files contains
the details of grounds of show cause notice and
related supporting documents. On verifying for the
said notice on GST portal, some other documents of
some random dealers are found which are not
pertaining to the dealer M/s Veekay Vikram & Co
NEUTRAL CITATION
C/SCA/14917/2021 JUDGMENT DATED: 21/09/2023
undefined
LLP Even the system generated Performa of SCN,
which gets generated automatically while issuance
of such notice has not been found there with notice.
XXX XXX XXX
9. Thus, an attempt to communicate abote the
said notice has been made by this office by
uploading the notice on GST portal and considering
Section-169(1)(d) of the Act, the notice had been
issued and served through proper method. But here
in this case as stted herein above, once reference
number of notice (DRC-01 under section-73) is
generated, one system generated Performa of the
same should generate automatically but here in this
case no such system generated notice had got
generated due to technical glitch of system. And the
other attachments found with notice are of some
other documents which are not pertaining to this
dealer. So, in these circumstances on which grounds
the said notice had been issued was not
communicated to the dealer and the order
confirming demand of tax and penalty DRC-07
having reference no. ZF24021916989Q Dt.
21/02/2019 had been issued in relation to the said
notice.
10. Thus, the above show cause notice issued with
some technical glitch and therefore, the
undersigned may be permitted to withdraw the
Order passed at Page No. 20 with a view to pass a
fresh show cause notice with proper procedure."
9 In light of what is stated in the affidavit, wherein it is
stated by the deponent that he may be permitted to
withdraw the order at page 20, the summary report dated
NEUTRAL CITATION
C/SCA/14917/2021 JUDGMENT DATED: 21/09/2023
undefined
21.02.2019 is hereby quashed and set aside with the
aforesaid liberty. The petition is partly allowed to the
aforesaid extent. Rule is made absolute to the above
extent.
(BIREN VAISHNAV, J)
(BHARGAV D. KARIA, J)
BIMAL
