A summary of a show cause notice in electronic form cannot substitute the requirement for a formal show cause notice under the tax legislation. Issuance of a proper notice is a mandatory condition precedent for initiating proceedings and determining tax liability.

JUDGMENT :

MANISH CHOUDHURY, J.

Heard Mr. N.N. Jha, learned counsel for the petitioners and Mr. B. Choudhury, learned Standing Counsel, Finance & Taxation Department, Assam for all the respondents.

2. The petitioner no. 1 is a proprietorship firm wherein the petitioner no. 2 is the proprietor and for easy reference, they are collectively referred to as ‘the petitioner’ hereinafter. It is stated that the petitioner is a Government Contractor with annual turnover below Rupees one crore and it carries on its business in the name and style of M/s Riyan Enterprises. For the purpose of carrying out its business, the petitioner got itself registered under the Goods and Services Tax [GST] Regime vide Registration no. 18AVOPM0352L1Z7.

3. The petitioner has approached this Court by the instant writ petition to assail a Summary of Order dated 30.04.2024 passed by the respondent no. 3 purportedly in exercise of powers conferred under Section 73 of the Assam Goods and Services Tax [AGST] Act, 2017. One of the grounds on which the Summary of Order dated 30.04.2024 has been challenged is that there is no proper and prior Show Cause Notice prescribed under sub- section [1] of Section 73 of the AGST Act, 2017 and the petitioner was only served with a Summary Show-Cause Notice dated 18.12.2023 in Form GST DRC – 01, which was also not in conformity with Section 73 read with Rule 142[1][a] of the AGST Act, 2017. It is stated that after issuing the Summary Show Cause Notice on 18.12.2023 and passing of the impugned Order dated 30.04.2024, the petitioner has been served with a Show Cause Notice for cancellation of Registration on the ground of unpaid liabilities and its Registration has been suspended w.e.f. 08.01.2026.

4. For ready reference, Section 73 of the Central Goods and Services Tax [CGST] Act, 2017 and sub-rule [1] of Rule 142 of the Central Goods and Services Tax Rules, 2017, which provisions are pari materia to Section 73 of the AGST Act and Rule 142[1] of the AGST Rules, 2017, 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 sub-section [1], on the person chargeable with tax.