TaxTMI 
TaxTMI 
2022 (7) TMI 702
X X X X Extracts X X X X
X X X X Extracts X X X X
....sued without resorting to Section 73(1) of the Jharkhand Goods and Services Tax Act, 2017. C. For issuance of an appropriate writ(s), order(s) or direction(s) holding that in the absence of the service of the Show Cause Notice to be issued under sub-Section (1) of Section 73 of the Jharkhand Goods and Services Tax Act, 2017, the Order dated 01-11-2021 (Annexure-5) and Summary of Order dated 01-11-2021 (Annexure-6) in Form DRC-07 and Garnishee Order dated 25-02-2022 (Annexure- 7) in FORM GST - DRC 13 are void ab initio and accordingly null and void and entire proceeding thereunder is liable to be quashed. D. For issuance of an appropriate writ, order or direction, holding and declaring that issuance of an Order under section 74(9) read with section 16(4) of the Act without issuance of mandatory Show Cause Notice is in violation of principles of natural justice, hence, the proceedings becomes ab initio void. E For issuance of an appropriate writ, order or direction, for quashing the Order dated 01-11-2021 (Annexure-5) purported to have been passed under Section 73(9) of the Jharkhand Goods and Services Tax Act, 2017 and Summary of Order in Form DRC 07 dated 01-11-2021 (Annex....
X X X X Extracts X X X X
X X X X Extracts X X X X
....which such invoice or the date of invoice relating to such debit note pertains or the date of furnishing of the relevant annual return, whichever is earlier. Petitioner also cited a number of judgments in his support. In respect of the levy of the interest a plea was taken that no rules have been prescribed for computation thereof in absence of which it is unworkable. A plea has been taken that levy of interest would start only after adjudication of the demand as the noticee has disputed the liability. Further penalty under Section 73(8)/(9) would be attracted only after demand is adjudicated upon a proper show-cause notice under Section 73(1) of the Act and is not paid within 30 days of issuance thereof. It is the specific case of the petitioner that no show-cause notice under Section 73(1) was issued after the intimation under DRC-01A. Such categorical statement has been made at paragraph 16 of the writ petition. However, the adjudicating authority has proceeded to levy tax, interest and penalty by passing an Adjudication order on 1st November 2021 (Annexure-5) to the tune of Rs. 3,84,11,318.04 and directed for issuance of summary of show-cause notice under DRC-07. 4. Learned ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d upto March, 2020, the limitation for initiation of a fresh proceeding upon remand and passing of the order in terms of Section 73(2) read with sub-section 10 of Section 73 has not expired. Therefore, the respondents may, if so deem proper, initiate fresh proceeding in accordance with law. 6. Learned counsel for the Respondent-State has opposed the submission. Counter affidavit has been filed by the Respondent-State Tax Officer, Dhanbad. It is inter alia contended that petitioner has not availed statutory remedy of appeal under Section 107 of JGST Act against the adjudication order passed under Section 73(1). It has further been stated that petitioner has not filed information regarding mobile no. and e-mail ID of the Directors and of business. Therefore, REG-17 was issued to the petitioner. He filed self-amendment in registration and still he has not given correct mobile number of business and its representative. It is further contended that Company filed its return for the month of March, 2019 in Form GSTR-3B on 28th October, 2019 for the Financial Year 2018-19. It was scrutinized by the Department and found that the petitioner's claim of Input Tax Credit is in contravention of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....m GST ASMT-11, his reply was formerly rejected. Learned counsel for the respondent is also not in a position to dispute that apart from summary of the show cause notice issued in form GST DRC-01, no proper show cause notice was issued in terms of Section 73(1) of the Act upon the petitioner. 9. We have considered the submission of learned counsel for the parties, taken note of the materials placed from record and also the provision of law and judgments cited by the counsel for the petitioner. It is evident that in terms of Sections 70(4) & (5) in case an adverse order is to be passed against the assessee, the assessee is to be granted three opportunities to furnish reply, if the time is sought for. In the absence of proper show cause notice for furnishing reply, petitioner was prevented from taking his defence and submitting a proper reply to the show-cause notice. The adjudication order has been passed straightaway without following due procedure prescribed under Section 73 read with section 75(4) & (5) of the JGST Act. The aforesaid infirmities have vitiated the adjudication proceeding. The case of the petitioner is covered by the judgment rendered by this Court in the case of M....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Ltd., CCE v. Ballarpur Industries Ltd. and CCE v. Champdany Industries Ltd.) Admittedly, in the instant case, no such objection was raised by the adjudicating authority in the show cause notice dated 22-6-2001 relating to Assessment Years 1988-1989 to 2000-2001. However, in the show-cause notice dated 12-12-2000, the process of electrifying polish finds a brief mention. Therefore, in the light of the settled legal position, the plea of the learned counsel for the Revenue in that behalf cannot be entertained as the Revenue cannot be allowed to raise a fresh plea, which has not been raised in the show-cause notice nor can it be allowed to take contradictory stands in relation to the same assessee." In a notice under Section 74 of the JGST Act, the necessary ingredients relating to fraud or willful misstatement of suppression of fact to evade tax have to be impleaded whereas in a notice under Section 73 of the same act the Revenue has to specifically allege the violations or contraventions, which has led to tax not being paid or short paid or erroneously refunded or Input Tax Credit wrongly availed or utilized. It is trite law that unless the foundation of a case is laid down in a ....