TaxTMI 
TaxTMI 
2023 (4) TMI 402
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.... being heard and decided by this common judgment. 2. In W.P (T) No. 1237/2022 relating to the tax period April 2018 to March 2019, petitioner has sought quashing of the show-cause notice dated 07.10.2020 (Annexure-2) issued under section 73 of JGST Act, 2017 (hereinafter to be referred as the 'Act of 2017'). Petitioner has also laid challenge to the Summary of show-cause notice of the same date issued in Form GST DRC-01 (Annexure-3). Petitioner has also challenged the Summary of the Order dated 12.12.2020 (Annexure-4) issued in Form GST DRC-07. All such notices and order have been issued by the Deputy Commissioner of State Tax, Jharkhand Goods and Service Tax, Godda (Respondent No. 2). 3. In W.P (T) No. 1244/2022 relating to the same ....
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....for the period in question and that the petitioners have taken undue ITC to which they were not entitled. Petitioners have also taken a plea that Summary of the Order contained in Form GST DRC-07 imposes 100% penalty which is impermissible under the provisions of Section 73(9) of the Act of 2017. 100% penalty can only be levied in a proceeding under section 74 (9) of the Act of 2017. No adjudication order has been uploaded. It is further submitted that proceedings suffer from serious violation of principles of natural justices and the procedure prescribed in law. On the same plea three other writ petitions being W.P.(T) Nos.1239, 1261 and 1263 of 2022 have been allowed by this Court vide order dated 11th July 2022. Therefore, the impugned s....
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....enalty of 100% of the tax dues can be levied in a proceeding under section 73(1) in terms of section 73(9) of the Act, 2017. 7. Learned counsel for the State have however, submitted that in case impugned show-cause notices and Summary of the Orders are quashed, liberty may be granted to the Revenue to initiate proceeding after proper service of show-cause notice upon the petitioners. In view of Section 73(10) of the JGST Act, 2017, limitation for initiating fresh proceeding and passing orders would expire by 30th December 2023. 8. We have considered the submissions of learned counsel for the parties and taken note of the materials on record. We may straightaway point out that notices under section 73(1) of the Act of 2017 at Annexure-....
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....ce, also fails to describe the necessary facts which could give an inkling as to the contravention done by the petitioner. As noted herein above, the brief facts of the case do not disclose as to which work contract, services were completed or partly completed by the petitioner regarding which he had not reflected his liability in the filed return as per GSTR-3B for the period in question. It needs no reiteration that a summary of show cause notice in Form DRC- 01 could not substitute the requirement of a proper show cause notice. At the same time, if a show cause notice does not specify the grounds for proceeding against a person no amount of tax, interest or penalty can be imposed in excess of the amount specified in the notice or on grou....
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....re, 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 utili....
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....GST ASMT-10 is a condition precedent for invocation of Section 73 or 74 of the JGST Act for the purposes of deciding the instant case. Since the Court has not gone into the merits of the challenge, respondents are at liberty to initiate fresh proceedings from the same stage in accordance with law within a period of four weeks from today" 9. Levy of penalty of 100% of tax dues reflected in the Summary of the Order contained in Form GST DRC-07 vide Annexure-4 in the respective writ petitions are also in the teeth of the provisions of Section 73(9) of the Act of 2017, wherein while passing an adjudication order, the Proper Officer can levy penalty up to 10% of tax dues only. The above infirmity clearly shows non-application of mind on the p....