IMPORTANT POINT
A proper Show Cause Notice is essential for valid proceedings under Section 73 of the Assam Goods and Services Tax Act, and its absence invalidates any subsequent orders.

ORDER :

Heard Mr. R.S. Mishra, learned counsel for the petitioner and Mr. B. Choudhury, learned Standing Counsel, Finance & Taxation Department for all the respondents.

2. The petitioner has stated that he is in the business of execution of works contracts and carries out business in the name of his proprietorship concern, M/s Bitupan Doley. For the purpose of carrying the business, the petitioner had registered himself under the Goods and Services Tax [GST] vide Registration no. GSTIN/ID : 18BEHPD3262H2ZM.

3. The petitioner has approached this Court by the instant writ petition to assail an Order dated 25.08.2024 passed by the respondent no. 3 purportedly in exercise of powers conferred under Section 73 of the Assam Goods and Services Tax Act, 2017. One of the grounds on which the Order dated 25.08.2024 has been challenged is that there was no proper and prior Show Cause Notice prescribed under sub-section [1] of Section 73 of the Assam Goods and Services Tax Act, 2017 and the petitioner was only served with a Summary of Show Cause Notice in Form GST DRC-01, which is also not in conformity with Section 73 read with Rule 142[1][a] of the Assam Goods and Services Tax Act, 2017 [‘the AGST Act’, for short].

4. For ready reference, Section 73 of the Central Goods and Services Tax Act, 2017 [‘the CGST Act’, for short] and sub-rule [1] of Rule 142 of the Central Goods and Services Tax Rules, 2017 [‘the CGST Rules’, for short] which provisions are pari material to Section 73 of the AGST Act and Rule 142[1] of the AGST Rules, 2017, [‘the AGST Rules’], are quoted hereinbelow :-

Section 73. Determination of tax not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilised for any reason other than fraud or any wilful-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 refunded, or where input tax credit has been wrongly availed or utilised for any reason, other than the reason of fraud or any wilful-misstatement or suppression of facts to evade tax, he shall serve notice on the person chargeable with tax which has not been so paid or which has been so short paid or to whom the refund has erroneously been made, or who has wrongly availed or utilised input tax credit, requiring him to show cause as to why he should not pay the amount specified in the notice along with interest payable thereon under section 50 and a penalty leviable under the provisions of this Act or the rules made thereunder.

[2] The proper officer shall issue the notice under sub-section [1] at least three months prior to the time limit specified in sub-section [10] for issuance of order.

[3] Where a notice has been issued for any period under sub-section [1], the proper officer may serve a statement, containing the details of tax not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilised for such periods other than those covered under subsection [1], on the person chargeable with tax.

[4] The service of such statement shall be deemed to be service of notice on such person under sub-section [1], subject to the condition that the grounds relied upon for such tax periods other than those covered under sub-section [1] are the same as are mentioned in the earlier notice.

[5] The person chargeable with tax may, before service of notice under sub-section [1] or, as the case may be, the statement under sub-section [3], pay the amount of tax along with interest payable thereon under section 50 on the basis of his own ascertainment of such tax or the tax as ascertained by the proper officer and inform the proper officer in writing of such payment.

[6] The proper officer, on receipt of such information, shall not serve any notice under subsection [1] or, as the case may be, the statement under sub-section [3], in respect of the tax so paid or any penalty payable under the provisions of this Act or the rules made thereunder.

[7] Where t