127 taxmann.com 61 (Gujarat)
HIGH COURT OF GUJARAT
Anish Infracon India (P.) Ltd.
Union of India
- SONIA GOKANI and Ms. VAIBHAVI D. NANAVATI, jj.
R/SPECIAL CIVIL APPLICATION NO. 6677 of 2021
APRIL 22, 2021
Avinash Poddar for the Petitioner.
Ms. Justice Sonia Gokani. — This petition is preferred under Article 226 of the Constitution of India challenging the authority of the summary order in FORM GST DRC-07 dated 18.02.2021 on the ground that the summary order is suffering from the vice of non-consideration of submissions made by the petitioner and this also is the case of serious breach of principles of natural justice.
- According to the petitioner, the order is passed without following due procedure as prescribed under section 74 of the Central Goods & Services Tax Act, 2017 (CGST Act) and Central Goods & Services Tax Rules, 2017. The petitioner is a private limited company, which received the show cause notice dated 06.01.2021, which had been replied to in detail on 21.01.2021, which is in reference to the wrong availment of ITC during the period from 01.07.2017 to 31.03.2018. It is the grievance on the part of the petitioner that summary notice in the form of GST/DRC/07 dated 06.01.2021 culminated into the physical summary order of FORM GST DRC-07 dated 18.02.2021 demanding sum of Rs.81,72,530/- with a specific direction to make the payment in 30 days. On 26.03.2021 detailed submissions have been made and request also was made not to initiate the recovery proceedings. He has approached this Court on the ground that the detailed order is not being made available and what has been issued is the physical summary order dated 18.02.2021. This non-supply of the order without any explanation or reasons for raising huge demand is the ground, according to the petitioner, to approach this Court with the prayers made at para 14:-
“14. In the aforesaid circumstances, the Petitioner most humbly pray before your Lordship:
|(a)||To issue an appropriate writ, order or direction to quash the entire proceedings as the mandatory procedure prescribed in the section 74 of the Act and Rule 142 of the Rules has not been followed.|
|(b)||To issue an appropriate writ, order or direction to set-aside and quash the summary order in FORM GST DRC-07 dated 18.02.2021 as it suffers from the vice of non-consideration of submitted documents & detailed reply and violates the Principles of Natural Justice.|
|(c)||Pending admission, hearing and till final disposal of this petition, Your Lordships may be pleased|
|(A)||to stay the recovery proceedings which may be initiated by the respondent NO.2 as 30 days from the date of the summary order have already been elapsed;|
|(B)||To say the operation of proceedings initated by the respondent No.2.|
|(d)||to award Costs of and incidental to this application be paid by the Respondents”.|
- We have heard Mr. Poddar, learned advocate for the petitioner. He has fairly pointed out the statutory provision of section 107 of CGVAT which provides for the appeal to the Appellate authority, if any person is aggrieved by the decision or order passed under CGST Act or the SGST Act or the UTGST Act by the adjudicating authority, within three months from the date on which the decision of the order is communicated to the person concerned.
3.1 He, in the very breath, though has added that absence of detailed order is the hampering ground for the petitioner to move such an appeal and on a query raised by this Court, he has no instructions as to whether the petitioner has sought for the reasoned order from the adjudicating authority in the State.
- On hearing the learned Advocate for the petitioner, it is deemed appropriate and justifiable to relegate the Petitioner to the appellate authority prescribed under the statute without entering into the merits of the matter. All issues, which have been raised before the Court can be raised before the appellate Authority within the prescribed time of three months, raised in this petition, on seeking a reasoned order from the concerned authority.
- Let the reasoned order, if not already supplied to the petitioner, be provided within 07 days of the receipt of the copy of this order.
- Such a copy of reasoned order shall be shared electronically within 24 hours on e-mail id provided here on email@example.com to the Petitioner. This disposal shall not come in the way of the petitioner in adjudicating all the issues, which are raised before this Court and the authority concerned also shall not hold adversely on this disposal of the petition, where the Court, only on the ground of alternative remedy, has chosen not to enter into the merits of the matters.
- Petition stands disposed of accordingly.