TaxTMI 
TaxTMI 
2023 (4) TMI 700
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.... of ITC benefit. The proceedings are currently pending with the respondent no. 5. In the alternative, petitioner sought a declaration that the proceedings initiated against the petitioner by the Respondent DGGI is not maintainable at the instance of the respondent no.2, the Deputy Commissioner of State Tax, Singhbhum Circle, Jamshedpur. Petitioner also prayed that two parallel proceedings and / or investigation in respect of the same transaction cannot be continued for alleged wrongful claim of ITC and wrongful distribution of ITC by two different authorities. During the pendency of the writ petition, by order dated 28.09.2022 petitioner was allowed to challenge the summary of the order contained in DRC-07 dated 24.10.2018 (Annexure-16), which arose out of the summary of show cause dated 10.09.2018 originally impugned. In W.P.(T) No. 1593 of 2019 petitioner sought quashing of the summary of the order dated 02.02.2019 contained in Form GST DRC-07 issued by the respondent no.3 (Annexure-16). He also sought quashing of the show cause notice contained in reference no. 7574 dated 21.08.2018 issued by the respondent no.3 (Annexure-15) as being wholly without jurisdiction. Petitioner ma....
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....case of Natwar Singh Vrs. Director of Enforcement & another, reported in 2010(13) SCC 255. iii. It is also pointed out that the except in W.P.(T) No. 1594 of 2019, no proper adjudication as indicated in the summary of the order (GST DRC-07) has either been passed or has it been supplied to the petitioners despite the certified copy of the entire order sheet having been obtained by the petitioners. 4. Learned counsel for the petitioners submitted that therefore the impugned summary of the show cause notice in GST DRC-01 and the impugned summary of the order contained in GST DRC-07/ adjudication order in W.P.(T) No. 1594 of 2019 be set aside. It is also submitted that the respondents may be left with a liberty to initiate fresh proceeding in accordance with law and as per the requirement of Section 73/74 of the JGST Act, 2017. 5. The brief facts of the individual writ petitions are as under: In W.P.(T) No. 2091 of 2019 petitioner had obtained registration certificate in Form GST REG-06 both from the State of Jharkhand and State of Rajasthan vide Annexure 2 and Annexure-1 dated 23.03.2018 and 09.06.2018. Inspection was carried out on 28.08.2018 in his business premises but befo....
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.....7,57,30,059.10 for the period of October 2017 to March 2018. Petitioner was surprised to receive the summary of the order dated 02.02.2019 in form GST DRC-07 imposing liability of tax, penalty and interest upon him on the same ground that he has wrongly claimed ITC and distributed the same to the others. Petitioner specifically contends that no date of hearing was fixed nor any opportunity of hearing was granted to the petitioner. Petitioner has obtained the certified copy of the entire order sheets along with Form GST DRC-07, which shows that only summary of show cause notice in DRC -01 was issued on 21.08.2018 where no date of hearing was fixed neither any document was provided. There was no record about any revised DRC-01 being issued vide reference no. 7574 dated 21.08.2018. On the very first date after issuance of DRC-01, it was recorded that no steps were taken by the petitioner and accordingly the order has been passed by issuance of Form DRC-07. On these factual and legal grounds, petitioner has assailed the impugned action taken by the State Tax authorities now. Counter affidavit has been filed by the respondent DDGI and the State of Jharkhand. In W.P.(T) No. 1594 of 201....
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....n to the petitioner and the order was communicated on the portal but no document has been annexed thereto. On the contrary, petitioner has placed reliance upon the certified copy of the entire order sheet to substantiate the contention that no opportunity of hearing was given to the petitioner as per the mandate of Section 75(4) and (5) of the Act. Learned counsel for the DDGI submits that since the petitioner has confined his challenge to the action taken by the respondent State authorities, respondent DDGI may be allowed to proceed independently against the petitioners. 7. We have considered the submission of the learned counsel for the parties and taken note of the relevant materials placed from the pleadings. The nature of challenge now is confined to the proceedings initiated by the State Tax authorities against the petitioner for wrongful availment of ITC and passing the benefits of ITC to others. Bereft of unnecessary details, the relevant materials facts which are germane to the controversy at hand and taken note in forgoing paragraphs concerning each of the petitioners show that in case of the none of the three petitioners any proper show cause as contemplated under Sec....
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....s Constitution Bench in Khem Chand held that the concept of "reasonable opportunity" includes various safeguards and one of them, in the words of the learned Chief Justice, is: (AIR p. 307, para 19) "(a) An opportunity to deny his guilt and establish his innocence, 8 which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based;" 27. It is no doubt true that at the stage of show cause, the person proceeded against must be told the charges against him so that he can take his defence and prove his innocence. It is obvious that at that stage the authority issuing the charge-sheet, cannot, instead of telling him the charges, confront him with definite conclusions of his alleged guilt. If that is done, as has been done in this instant case, the entire proceeding initiated by the show-cause notice gets vitiated by unfairness and bias and the subsequent proceedings become an idle ceremony." 15. The Apex Court has held that the concept of reasonable opportunity includes various safeguards and one of them is to afford opportunity to the person to deny his guilt and establish his innocence, which he can only do if he....
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....iolation of principles of natural justice, the challenge is entertainable in exercise of writ jurisdiction of this Court. Accordingly, the impugned notice at Annexure-1 and the summary of show-cause notice at Annexure-2 in Form GST DRC-01 are quashed. However, since this 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." 8. It is beyond cavil that a summary of a show cause notice cannot be a substitute of a proper show cause notice and would entail violation of principles of natural justice. In the absence of clear charges upon which the person so alleged is required to answer, proper opportunity to defend itself stands denied. It is also apparent from the materials on record that contrary to the requirement of Section 75(4) and (5) of the Act and the ratio rendered on the very subject by this Court in the case of M/s Godavari Commodities Ltd. (supra), no opportunity of hearing was granted to the petitioner before passing an order which is adverse to him. It also appears that the relied upon documents which forms the basis of passing of....