TaxTMI 
TaxTMI 
2025 (8) TMI 1199
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....ral Goods & Service Tax Act, 2017 and the Assam Goods and Services Tax Act, 2017. The petitioner has a GST registration bearing No. 18AAACA5364L1ZH. The respondent No. 3 herein, i.e. the Asstt. Commissioner of State Taxes had issued a summary of show-cause notice in Form DRC-01 dated 28-12-2023 under Rule 142 of the CGST Rules which was uploaded in the GST postal. It is the contention of the petitioner that no show-cause notice was uploaded along with the summary of the said show-cause notice. The summary is in respect of the financial year, 2018-19. Along with the Form DRC-01 an attachment to determination of tax was also uploaded. The petitioner was to submit his reply on 28-01-2024. However, in relation to the date and venue of the personal hearing, it was indicated in the portal to be not applicable. The petitioner further contented that without affording an opportunity of hearing the respondent No. 3 pursuant to issuance of Form DRC-01 dated 28-12-2023 passed the impugned order dated 29-04-2024 demanding GST under Section 73 of CGST/ AGST Act to the tune of Rs. 67,75,803/- (Sixty seven lakhs seventy five thousand eight hundred three). Along with the said order dated 29-04-2024....
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.... other officer who is authorized to issue such notices or certificates or orders through digital signature certificate or through e-signature (as prescribed under the provisions of Information and Technology Act, 2000). It is highlighted by the petitioner that the impugned Form GST DRC-01 dated 14-12-2023 as well as order dated 29-04-2024 did not contain any signature as required under Rule 26(3) of the CGST Rules. 7. In the above premises the petitioner has instituted the present proceeding assailing the Form GST DRC-01 dated 28-12-2023, as well as the order dated 29-04-2024 issued by the respondent No. 3. 8. Mr. R.S. Misra, learned counsel for the petitioner by reiterating the contentions hereinabove has submitted that the Form GST DRC-01 dated 28-12-2023 having been so issued in clear violation of the provision of Section 73 of the CGST Act, 2017, the same would mandate interference by this Court. He has submitted that the summary of the show-cause notice as uploaded in the portal not being preceded by issuance of a show- cause notice, the respondent authorities could not have taken action in the matter and proceeded to issue the order dated 29-04-2024 basing on a summary ....
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....his Court had drawn the following conclusions. (i) Whether Show Cause Notices were issued prior to passing the Impugned Order under Section 73 (9) of the State Act. 15. From the perusal of the records, it would show that in the Summary of the Show Cause Notices issued in GST DRC-01 to the petitioners in the batch of writ petitions, there is a mention therein that there is a Show Cause Notice attached. It is the case of the respondents that the said attachment wherein determination of tax is mentioned is the Show Cause Notice. The question therefore arises as to whether the said attachment can be said to be a Show Cause Notice as per the mandate of both the Central Act as well as the State Act and the Rules made therein under. It would be apposite to take note of that in all these cases, the Summary of the Show Cause Notices have been issued in terms with Section 73. 16. At this stage, this Court would briefly take note of Section 73. A perusal of Section 73 would show that the said provision is set into motion when it appears to the Proper Officer that:- (a) Any tax has not been paid; or (b) Any tax short paid; or (c) Any tax er....
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....long with the (a) notice issued under section 52 or section 73 or section 74 or section 76 or section 122 or section 123 or section 124 or section 125 or section 127 or section 129 or section 130, a summary thereof electronically in FORM GST DRC01, (b) statement under sub-section (3) of section 73 or sub-section (3) of section 74, a summary thereof electronically in FORM GST DRC-02, specifying therein the details of the amount payable." From a perusal of the above quoted Rule, it would show that in addition to the Show Cause Notice to be issued under Section 73 (1) and the Statement of determination of tax under Section 73 (3), there is an additional requirement of issuance of a Summary of the Show Cause Notice in GST DRC-01 and the Summary of the Statement in GST DRC-02. The natural corollary from the above analysis is that the issuance of the Show Cause Notice and the Statement of determination of tax by the Proper Officer are mandatory requirement in addition to the Summary of Show Cause Notice in GST DRC-01 and Summary of the Statement in GST DRC-02. 18. The judgment of the learned Division Bench of the Jharkhand High Court in the case of Nka....
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....Order have no value as the same contains no authentication of the Proper Officer. In that regard, the learned counsels referred to Rule 26 (3) of the Rules and the judgment in the cases of M/s Silver Oak Villas LLP (supra) and A.V. Bhanoji Row (supra). 21. Rule 26 (3) of the Rules of 2017 categorically stipulates as to how notices, certificates and orders are to be authenticated. The said Sub-Rule is reproduced herein under:- "26.(3) All notices, certificates and orders under the provisions of this Chapter shall be issued electronically by the proper officer or any other officer authorised to issue such notices or certificates or orders, through digital signature certificate [or through E-signature as specified under the provisions of the Information Technology Act, 2000 (21 of 2000) or verified by any other mode of signature or verification as notified by the Board in this behalf.]" A perusal of the above quoted Sub-Rule would show that notices, certificates and orders under the provisions of Chapter III shall be issued electronically by the Proper Officer or any other officer authorized to issue such notices or certificates or orders through digital sig....
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....te the notice(s) or the order(s) in so far as other Chapters of the Rules of 2017 is silent except Chapter-III. Taking into account the utmost necessity of the authentication by the Proper Officer, this Court is of the opinion unless appropriate insertion are made in the Rules or notification are issued as per the directions of the Board to fill the void in the Rules of 2017, the authentication in the manner stipulated in Rule 26 (3) of the Rules of 2017 has to be applied as and when the Proper Officer is required to issue notice or Statement and pass Order in terms with the Act. (iii) Whether the impugned orders under Section 73 (9) of the State Act is in conformity with Section 75 (4) of the State Act and is in consonance with the principles of natural justice. 25. This Court has duly perused the Summary of the Show Cause Notices wherein the petitioners were only asked to file their reply on a date specified. There was no mention as to the date of hearing and the Column was kept blank. In two writ petitions, i.e. WP(C) No. 3912/2024 and WP(C) No. 3933/2024, the petitioners had sought for an opportunity of hearing which was however not given. In this regard, if t....
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....lowing conclusion. 29. On the basis of the above analysis and determination, this Court disposes of the instant batch of writ petitions with the following observations and directions:- (A) The Summary of the Show Cause Notice in GST DRC-01 is not a substitute to the Show Cause Notice to be issued in terms with Section 73 (1) of the Central Act as well as the State Act. Irrespective of issuance of the Summary of the Show Cause Notice, the Proper Officer has to issue a Show Cause Notice to put the provision of Section 73 into motion. (B) The Show Cause Notice to be issued in terms with Section 73 (1) of the Central Act or State Act cannot be confused with the Statement of the determination of tax to be issued in terms with Section 73 (3) of the Central Act or the State Act. In the instant writ petitions, the attachment to the Summary of Show Cause Notice in GST DRC-01 is only the Statement of the determination of tax in terms with Section 73 (3). The said Statement of determination of tax cannot substitute the requirement for issuance of the Show Cause Notice by the Proper Officer in terms with Section 73 (1) of the Central or the State Act. Under such circ....