2024 (6) TMI 663 - HC - GST

GST adjudication under Section 73(9): issuance of Form GST ASMT 10 required before final order, additional response and hearing ordered

Failure to supply Form GST ASMT 10 identifying discrepancies before passing an adjudication order breaches the obligation under the assessment rules and ... Violation of principles of natural justice - Form GST ASMT-10 - scrutiny of returns under Section 61 - opportunity to file response and hearing before adjudication - order under Section 73(9) vitiatedForm GST ASMT-10 - scrutiny of returns under Section 61 - violation of principles of natural justice - Failure of the proper officer to make available Form GST ASMT-10 when discrepancies were identified vitiated the adjudication under Section 73(9). - HELD THAT: - The Court found that, under the statutory scrutiny mechanism, the proper officer was obliged to identify discrepancies noticed while scrutinising returns and make them available to the petitioner in Form GST ASMT-10. As the petitioners were not furnished with Form GST ASMT-10 before issuance of the show cause notice and the subsequent adjudication order, they were deprived of the opportunity to know the specific discrepancies and to respond effectively. This omission constituted a breach of the principles of natural justice, rendering the impugned adjudication unsustainable on that ground. [Paras 5]The order passed under Section 73(9) dated 29th December 2023 is vitiated for non-provision of Form GST ASMT-10 and for violation of principles of natural justice.Opportunity to file response and hearing before adjudication - order under Section 73(9) vitiated - The matter was remanded for supply of Form GST ASMT-10, an opportunity to file additional response and hearing, and for fresh adjudication by the proper officer. - HELD THAT: - In view of the procedural defect, the Court kept the impugned order in abeyance and directed the proper officer to make available Form GST ASMT-10 within two weeks. The petitioners are to be afforded an opportunity to file additional responses to the show cause notice and to be heard. Thereafter the proper officer must consider the responses and, after giving an opportunity of hearing, pass a fresh order disposing of the proceedings. The Court prescribed a preferable timeline for completion of the reconsideration, but left the merits to be determined afresh by the proper officer after compliance with the directed procedure. [Paras 6, 7]Directed supply of Form GST ASMT-10 within two weeks, opportunity to file additional response and hearing, and remand for the proper officer to pass a fresh order preferably within eight weeks.Final Conclusion: Writ petition disposed by keeping the impugned Section 73(9) order dated 29th December 2023 in abeyance; matter remanded for issuance of Form GST ASMT-10, opportunity to respond and be heard, and fresh adjudication for the period 1st July 2017 till 31st March 2018. Issues involved: Challenge to order u/s 73(9) of WBGST & CGST Act 2017 for the period 1st July 2017 till 31st March 2018 due to lack of notification of discrepancies to petitioners through Form GST ASMT-10.The petitioners, engaged in goods transport agency services, challenged an order dated 29th December 2023 u/s 73(9) of the WBGST & CGST Act 2017, alleging that the proper officer did not inform them of discrepancies by providing Form GST ASMT-10 as required by Section 61 of the Act.The petitioners argued that the absence of Form GST ASMT-10 hindered their ability to respond effectively to the show cause notice, contending that the proper officer failed in their obligation to identify discrepancies and notify the petitioners as mandated by the Act and Rules.The Court noted that the proper officer's failure to provide Form GST ASMT-10 to the petitioners violated principles of natural justice, rendering the order under Section 73(9) of the Act invalid. It was deemed essential for the proper officer to make available the form to enable the petitioners to respond adequately.In light of the above, the Court suspended the order passed under Section 73(9) of the Act and directed the proper officer to furnish Form GST ASMT-10 within two weeks, allowing the petitioners to submit additional responses to the show cause notice and ensuring a fair hearing process.The Court further instructed that if the petitioners fail to respond or submit a response to the show cause notice within two weeks of receiving Form GST ASMT-10, the proper officer should consider the matter and pass a fresh order within 8 weeks.The writ petition, WPA 9391 of 2024, was disposed of with the aforementioned directions for compliance by all parties based on the official copy downloaded from the Court's website.