TaxTMI 
TaxTMI 
2026 (9) TMI 1082
X X X X Extracts X X X X
X X X X Extracts X X X X
...., can substitute the statutory requirement of a SCN under the CGST / SGST Act? (ii) Whether the demand of ITC based only on mis-match of GSTR-2A and GSTR-3B returns is sustainable? 1.2 Since these issues entail questions of law, the subject appeal was heard by the Division Bench. 1.3 Ld Sh. Shafeeque Raj ('Ld. Counsel') represented the appellant and Ld Sh. Rajesh Kumar Singh, Deputy Commissioner, SGST represented the Respondent as the Departmental Representative ('Ld. DR'). (B) Facts, including submissions of Appellant and Respondent, in brief: 2.0 The appellant were issued a notice under Section 61 of UPGST Act, 2017 on 08.11.2023, bearing Reference No. ZD091123106657G, pointing out the discrepancies between GSTR-1 and GSTR-3B regarding a difference of Rs. 1,12,500/- in the value of taxable supply and a corresponding excess IGST of Rs. 20,250.54 for the financial year 2018-19. The appellant filed their reply in Form ASMT-11 (Reference No. ZD091123223837C dated 20.11.2023) explaining that a transaction having taxable value of Rs. 1,12,000/- was left to be reported in GSTR-1 but the mistake was noticed while filing GSTR-3B and the correct tax liability was disch....
X X X X Extracts X X X X
X X X X Extracts X X X X
....50;ा प्रमाण पत्र सत्यापित नहीं है", the First Appellate Authority upheld the original adjudication order. 2.3 Aggrieved with the order of First Appellate Authority, the appellant has filed this subject appeal before the GSTAT, or the second appellate authority, raising the following grounds in their appeal: 1) Only DRC-01, but no show cause notice, was issued to the appellant and therefore the appellant pleads that the impugned order-in-original and the order-in-appeal are not sustainable. 2) Demand of IGST of Rs. 20,250.00 is not sustainable and liable to be dropped: 3) Demand of ITC of CGST Rs. 23,465.00 and SGST Rs. 23,465.00 based only on mis-match of GSTR-2A and GSTR-3B are not sustainable. 2.4 The Bench commenced hearings on 15th July 2026. In the subject case, hearings were held on10.08.2026, 09.09.2026 & 14.09.2026. Time and again the respondent was advised to get their id mapping process completed on the portal and also upload, among other required documents, the authorisation issued by compet....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of Jharkhand [2022 (63) G.S.T.L.18 (Jhar.] wherein the Hon'ble High Court of Jharkhand categorically held that show cause notice and its summary are two separate things and the summary i.e. DRC-01 cannot take place of a proper show cause notice. 4.2 The issue before us is whether Form DRC-01, being a summary of the SCN, can substitute the statutory requirement of a SCN under the CGST / SGST Act? 4.2.1 We observe that the UPGST Act, prescribes that a SCN issued under 73(1) must be accompanied by Form DRC-01, which essentially is a summary of the SCN. 4.2.2 It would be appropriate to refer to the relevant Section 73 (1) of the UPGST Act, 2017 and Rule 142 (1) (a) of Uttar Pradesh Goods and Services Tax, Rules 2017 governing the issuance of SCN and of DRC-01 that are reproduced hereunder: "Section 73. Determination of tax [pertaining to the period up to Financial Year 2023-24] not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilised for any reason other than fraud or any willful-misstatement or suppression of facts. - (1) Where it appears to the proper officer that any tax has not been paid or short paid or erroneously r....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ree principal purposes: (a) It informs the taxpayer of the allegations. (b) It specifies the proposed tax, interest and penalty. (c) It gives the taxpayer an opportunity to defend himself before an adverse order is passed. While examining the validity of a SCN, the following points would be relevant, - i) Who is the person proceeded against? ii) What tax / ITC / refund is alleged to be wrong? iii) For which period? iv) Under which statutory provision? v) On what factual and evidentiary basis? vi) Was the taxpayer given a real opportunity to answer that particular allegation? 4.2.5 In this connection not only the citation furnished by the appellant but the decision of Hon'ble High Court of Gauhati in the case of Construction Catalysers (P.) Ltd vs State of Assam [WP (C) No. 3912 of 2024 dated 26.09.2024] is also relevant. The Hon'ble High Court held that Form DRC-01 cannot replace the statutory requirement of a SCN issued under section 73(1) of the Act ibid. It is also noticed that neither the adjudicating authority nor the First Appellate Authority tendered their observations or views on the issu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....reciate how even a remand would have been able to resolve such a matter. We also feel that examining the applicability of case laws cited by the appellant in his favour, may be superfluous in the instant case. 5.2 Demand of ITC of CGST Rs. 23,465.00 and SGST Rs. 23,465.00 based only on mis-match of GSTR-2A and GSTR-3B is not sustainable: 5.2.1 The appellant have cited a catena of judgments in their favour that a mismatch between GSTR 2A and GSTR-3B cannot be a ground for denial of ITC claim. Our attention has been drawn to Circular No. 183/15/2022-GST issued from F. No. CBIC-20001/2/2022-GST dated 27 December 2022 wherein vide Para 2 it has been clarified that GSTR-2A restriction was provided only w.e.f. 09.10.2019. The said para 2 is reproduced hereunder: "It is mentioned that FORM GSTR-2A could not be made available to the taxpayers on the common portal during the initial stages of implementation of GST. Further, restrictions regarding availment of ITC by the registered persons upto certain specified limit beyond the ITC available as per FORM GSTR-2A were provided under rule 36(4) of Central Goods and Services Tax Rules, 2017 (hereinafter referred to as "CGST Rules....