THE HON’BLE THE CHIEF JUSTICE SRI APARESH KUMAR SINGH AND THE HON’BLE SRI JUSTICE G.M.MOHIUDDIN WRIT PETITION No.20064 of 2025

ORDER:

Mr. Shaik Jeelani Basha, learned counsel for the petitioner.

Mr. Dominic Fernandes, learned Senior Standing Counsel for Central Board of Indirect Taxes and Customs (CBIC) appears for respondent No.1.

Mr. B.Mukherjee, learned counsel for respondent No.2.

2. Heard learned counsel for the parties.

3. The impugned order-in-original is dated

05.02.2025 passed on the basis of a show cause notice dated 28.03.2024 whereby the respondent No.1 has dropped certain demands and confirmed certain demands of CGST and SGST in a proceeding under Section 74 of the Central Goods and Services Tax Act, 2017 (hereinafter referred to as ‘the CGST Act’). It has also imposed interest liability and penalty upon the petitioner.

4. Learned counsel for the petitioner inter alia has taken a number of grounds that the order-in-original dated 05.02.2025 is not valid in the eye of law as it does not contain any DIN number. It is further submitted that a composite order-in-original has been passed for a number of years i.e., from 2017-18 till 2021-22 which is not proper in the eye of law. It is further submitted that the intimation under Rule 142(1A) of the Central Goods and Services Tax (CGST) Rules, 2017 (hereinafter referred to as ‘the CGST Rules’) has not been issued. Therefore, the show cause notice in GST DRC01 is not valid in the eye of law. Therefore, the impugned order may be interfered.

5. Learned Senior Standing Counsel for CBIC has straight away pointed out from paragraph No.11 of the order-in-original dated 05.02.2025 that DRC01A was issued on 06.09.2023 in favour of the petitioner before issuance of the proceedings under Section 74(1) of the CGST Act. Therefore, that statement is not correct. The writ petition does not annex the intimation in Form DRC01A. The summary of the order in DRC07 is also not annexed to the writ petition.

6. Learned Senior Standing Counsel for CBIC has submitted that as per Section 74(10) read with Sub-Section (2) of the CGST Act, the Assessing Officer is under a duty to pass order within a period of five years from the due date of furnishing of annual return for the financial year to which tax is not paid or short paid or ITC wrongly availed or utilised. Sub-Section (2) of Section 74 of the CGST Act mandates issuance of a notice at least six months prior to the time limit specified in Sub-Section (10) of Section 74 for issuance of the order. It is submitted by reference to the Notification No.6 of 2020 dated 03.02.2020 that the last date for furnishing annual returns for the financial year 2017-18 was extended to 07.02.2020. Similarly by Notification No.80 of 2020 dated 28.10.2020, the last date for furnishing annual returns for financial year 2018-19 was extended up to 31.12.2020. Therefore, even for the financial year 2017-18, the order could be passed within five years from the date of filing of the annual returns which is February, 2025. In the instant case, the show cause notice has been issued for all the financial years on 28.03.2024 which is well within the time line prescribed under Section 74(10) of the CGST Act and read with the Notification Nos.6 of 2020 and 80 of 2020 even for financial years 2017-18 and 2018-19. It is submitted that the petitioner has instead of availing the remedy of appeal under Section 107 of the CGST Act, approached this Court after delay. Therefore, the writ petition may not be entertained.

7. Upon consideration of the rival submissions of the parties and after taking note of the relevant materials placed on record, we are of the considered view that the petitioner has not availed the remedy of appeal before approaching this Court. Some of the contentions of the petitioner that the DRC01A was not issued is also incorrect. Moreover, the summary of the show cause notice alleged to be without DIN number has also not been annexed. In such circumstances, this Court is