A show cause notice under Section 73 of the CGST Act must be issued at least three months prior to the last date for passing an order, and the issuance date is excluded in this calculation.

JUDGMENT & ORDER :

MANISH CHOUDHURY, J.

The petitioner herein is a private limited company incorporated under the provisions of the Companies Act and its principal place of business is at Gar Ali, Jorhat, Assam. The petitioner company is in the business of wholesale / distribution of cellular phones, etc. which comes under the purview of Chapter 85 of the Customs Tariff Act, 1975. For the purpose of carrying out its business, the petitioner company got itself registered under the Central Goods and Services Tax Act, 2017 [‘the CGST Act’, for short] and the Assam Goods and Services Tax Act, 2017 [‘the AGST Act’, for short] vide GST Registration no.18ADCS648OJ1ZX.

2. In this writ petition instituted under Article 226 of the Constitution of India, assail is made to a Show Cause Notice together with a Summary in Form GST DRC–01 having reference no. ZD181124009288G dated 29.11.2024 issued by the Assistant Commissioner of State Tax, Jorhat Zone, Jorhat, Assam [the respondent no. 2].

3. The Show Cause Notice in Form GST DRC–01 bearing Reference no. ZD181124009288G dated 29.11.2024 for the Financial Year : 2020-2021 has come to be issued to the petitioner company under the hand of the respondent no. 2 stating inter-alia that on examination of the information furnished in the Annual Return for the Financial Year : 2020-2021 under various heads and the information furnished in GSTR–01, GSTR–2A, GSTR–3B, EWB and other records available in the office, it has been found that the petitioner company had not declared its correct tax liability while filing the Annual Return in Form GSTR–09. It is stated that the petitioner company had availed excess Input Tax Credit [ITC] from cancelled dealers, returned defaulters and tax non-payers. By the Show Cause Notice, the petitioner has been asked to pay a total liability of Rs. 33,03,968/- [= Rs. 24,012/- (CGST) + Rs. 24,012/- (AGST) + Rs. 32,55,944/- (IGST)] along with interest and penalty under Section 73 of the CGST/AGST/IGST Act.

4. Aggrieved by the issuance of the Show Cause Notice dated 29.11.2024 under Section 73 of the CGST/AGST Act, the petitioner has instituted the instant writ petition under Article 226 of the Constitution seeking setting aside and quashing of the Show Cause Notice dated 29.11.2024.

5. I have heard Mr. A. Kanodia, learned counsel for the petitioner; and Mr. B. Gogoi, learned Standing Counsel, Finance & Taxation Department for all the respondents.

6. Mr. Kanodia, learned counsel for the petitioner has referred to the provisions of Section 73[1], Section 73[2], Section 73[9] and Section 73[10] of the CGST/AGST Act to contend that a Show Cause Notice under Section 73[1] has to be issued atleast three months prior to the time limit specified in Section 73[10] for issuance of an Order. By the Notification no. 40/2021 Central Tax dated 29.12.2021, the due date of filing of the Annual Return in Form GSTR-9 and the Reconciliation Statement in Form GSTR-9C for the Financial Year : 2020-2021 was extended from 31.12.2021 to 28.02.2022. He has submitted that in order to find the meaning of 'month' appearing in Section 73[2], recourse has to be taken to the definition of 'month' provided in Section 3[35] of the General Clauses Act, 1897. He has contended that in the case of the petitioner, the Show Cause Notice under Section 73 ought to have been issued by the proper officer atleast three months prior to the last date of filing of the Annual Return for the