TaxTMI 
TaxTMI 
2022 (7) TMI 752
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....HONOURABLE MS. JUSTICE SONIA GOKANI) 1. By this common order, both the petitions are being dealt with. For the purpose of adjudication, the facts are drawn from the petition being Special Civil Application No.11332/2022. 2. The present petitions under Article 226 of the Constitution of India seek to challenge the legality and validity of the Order-in-original dated 25.03.2022 along with 2 Summary Orders thereof in Form DRC-07 passed by the respondent No.3 on the ground that the same are in gross violation of the provisions of the Central Goods and Services Tax Act, 2017 (CGST Act, 2017) and Central Goods and Services Tax Rules, 2017 (CGST Rules, 2017) as also the Gujarat Goods and Services Tax Act, 2017 (GGST Act, 2017) and Gujarat Go....
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....exempt, Nil-rated or non-GST supply. 6. The respondent No.3 intimated the liability of GST along with interest and penalty in Form GST DRC-01A. The intimations also proposed that there was requirement of reversal of ITC under Rules 42 and 43 of the CGST Rules. This happened on 10.12.2021 and 22.12.2021. 7. It is the grievance of the petitioners that on 14.02.2022, without awaiting for any response from the petitioners, a show-cause Notice came to be issued proposing a demand of ITC along with interest and penalty totalling nearly 7.63 Crores (rounded off) under Section 73(1) of the CGST Act read with the GGST Act. Reply came to be filed on 26.02.2022 along with the reasons and attachments. 8. On 25.03.2022 the order came to be pass....
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....s Hon'ble Court may deem fit and proper under the facts and circumstances of the present case; G. Grant costs; and H. Grant such further and other reliefs as the nature and circumstances of the case may require." 9. Notice to be made returnable forthwith. Let the learned Assistant Government Pleader appear on advance copy. 10. We have heard both the sides finally at the time of issuance of notice itself. 11. At the outset, we would like to reproduce Section 75 of the CGST Act, 2017, which is as under: "Section 75 : General provisions relating to determination of tax. (1) Where the service of notice or issuance of order is stayed by an order of a court or Appellate Tribunal, the period of such sta....
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....e basis of his decision. (7) The amount of tax, interest and penalty demanded in the order shall not be in excess of the amount specified in the notice and no demand shall be confirmed on the grounds other than the grounds specified in the notice. (8) Where the Appellate Authority or Appellate Tribunal or court modifies the amount of tax determined by the proper officer, the amount of interest and penalty shall stand modified accordingly, taking into account the amount of tax so modified. (9) The interest on the tax short paid or not paid shall be payable whether or not specified in the order determining the tax liability. (10) The adjudication proceedings shall be deemed to be concluded, if the order is ....
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....rson under any other provision of this Act." 12. Section 75(4) of the CGST Act, 2017 provides that an opportunity of hearing is to be provided where a request is received in writing from the person chargeable with tax or penalty or where any adverse decision is contemplated against such person. 13. The stand on the part of the Department is that the Online Portal mode was chosen by the petitioners, which had resulted in the entire matter having been proceeded Online. The opportunity of hearing was not granted since the same was not requested for. However, while so arguing, the provision of Section 75(4) has been missed out. Even without any request having been made on the part of the party concerned, when any adverse decision is conte....