TaxTMI 
TaxTMI 
TaxTMI 
Honestly speaking, I would like to take a break for one month from writing this series but the orders which are published by the respective jurisdictional courts prompt me to write more and more such articles as new dimensions are coming out every day. One such order was passed on 19/02/2026 and on 27/02/2026 by the Jalpaiguri Bench of the High court at Calcutta in WPA 1743 of 2024 in the matter of Phuljhora Agro planation pvt limited & Another Vs Union of India and others - 2026 (3) TMI 289 - CALCUTTA HIGH COURT.
The High Court has observed several lacunae in a single order passed under section 74 pertaining to the year 2017-18 (part) and simply remanded matter to original adjudication authority to reconsider with several observations which are binding on the GST Officer.
A show cause notice was issued on 19/05/2023 by invoking section 74 not because there was tax evasion but the officer, invoked 74 with motive to levy huge penalties though 73 notice was possible up to 30/09/2023. This is the number one. The Show Cause Notice was not even uploaded in notices column but only uploaded in additional notices with ulterior motive that this SCN must miss the attention of the taxpayer. This is number two.
What is the need for Additional Notices ?. How a SCN being issued for the first time will be additional notice?. Can we expect an answer from the concerned GST Officer?.
The officer wanted to prove (in a wrong manner) that he is not contravening the provision of 75(4) by fixing three dates for Personal Hearing as 09/07/2023, 11/09/2023 and 29/09/2023. The fact that no reply to SCN was received till the date of passing the OIO on 02/11/2023 proves that there was no effective communication of Show Cause Notice as well as Personal Hearings. The officer did not bother to look in to these aspects. This is number 3.
It has been emphasized categorically by various jurisdictional High Courts that compliance of Section 169 on mode of service of notice is totally independent of 75(4) and the simple fact that SCN and PH Notices were uploaded in portal would be meaningful only when the same are noticed by the taxpayer and proper reply is received.
The GST officers are very lucky on one aspect that despite thousands of orders passed across India in gross violation of principles of natural justice, this fact comes to light only when the matter reaches the jurisdictional high courts by way of writ. However, this route is slowly getting closed now as GSTAT is operational now and the tribunal is competent to pass appropriate orders under identical situations.
I am afraid that as more and more cases reach the respective benches on gross violation of 75(4) as well as 75(5), the GSTAT may not be as lenient as the High Court and may very well pass strictures as well as impose cost. This argument is based on the fact that writs before high courts are just one category of the cases handled by High Courts whereas the cases before GSTAT are ONLY ONE CATEGORY, that is GST.
I hope this message is loud and clear and all officers who happen to pass orders adjudicating a show cause notice shall from today onwards ensure that all the provisions contained in Section 75 on general provisions relating to determination of tax are fully complied so as to save their skins.
The only purpose of this article is to bring down the cases which are passed without adhering the principles of natural justice from this moment onwards and even if ten officers across India read this article, the purpose of spending few hours for a common cause stands fully achieved.
The operative portion which covers several observations are furnished below for wide publicity amongst all tax officials.
12. In conspectus of the above, I find that the petitioners have been able to make out a prima facie case. Upon being satisfied an interference is warranted, at this stage. From the records I find there is a reflection of gross technical and procedural irregularity.
13. It is mandatory upon the respondent authority to afford an opportunity of hearing to the petitioners by way of a reply to the show cause-cum- demand notice dated 19.05.2023. It is well settled proposition of law that an assessment order passed in haste, without considering the material evidence and reply, constitutes a gross violation of the principles of natural justice.
15. It is made clear, that the notice of hearing shall be sent by all possible modes of service, namely, through registered post, by uploading in the portal and also by sending to the registered mail ID of the petitioners.
16. In view of the above, the order dated 02.11.2023 is hereby quashed and set aside.
Concluding remarks: Officers may pretend as if these are subsequent developments and they were unaware etc. All benches of GSTAT across India is aware of these judgements as they believe in Judicial Discipline. Hence, GST officers are at great risk now, in case they continue to pass orders in violation of Section 75.
Setting aside an order is first stage. Quashing an order is second stage. Quashing and setting aside is final stage. In my view, action is warranted by senior officials on erring officers at least when it is in final stage.
The language used, methods suggested and instructions given in the above High Court Order are commendable and have far reaching consequences.