M/S Shiv Dularey Gupta Thru. Legal Representative Suresh Kumar vs. State Of U.P. Thru. Prin. Secy. Institutional Finance Lko. And Another

Held

The Court noted that the petitioner's son, Suresh Kumar, continued to access the department's portal and upload returns even after the sole proprietor's death, suggesting he had notice of the proceedings. However, the Court also observed that the notices issued under Section 73 of the Act repeatedly failed to mention the date, time, and place of personal hearing, a practice that has been settled by the High Court and is contrary to departmental circulars. Despite these observations, the Court did not quash the impugned order. Instead, it directed the petitioner to approach the Appellate Authority under Section 107 of the GST Act. The Court expressed its constraint in finding such notices being issued without proper personal hearing details and, as a disciplinary measure, directed Sri Umashankar Tiwari, Commercial Tax Officer, Ayodhya Sector-4, Ayodhya (B), Ayodhya, U.P., to undergo three months of training and not be assigned any adjudicatory role during this period. No issue was expressly left undecided.

Facts

The petitioner, M/S Shiv Dularey Gupta, a sole proprietorship firm, is challenging an order dated 28.04.2024 passed by the respondent no.2 under Section 73 of the GST Act, imposing a tax liability, interest, and penalty of Rs. 52,01,440/-. The sole proprietor, Shiv Dularey Gupta, died on 24.08.2021. The petitioner claims that notices under Section 61 (dated 04.11.2023) and Section 73(1) (dated 26.12.2023) were uploaded on the department's portal under the 'Additional Notices' tab, which the petitioner could not access. The petitioner also contends that the notice under Section 73(1) and the Form GST DRC-01 did not specify the place, time, or date of personal hearing. The petitioner's legal representative, Suresh Kumar (son of the deceased proprietor), sought a personal hearing.

Key Issues

1. Whether the notices issued under Section 61 and Section 73(1) of the GST Act, uploaded only under the 'Additional Notices' tab on the department's portal, constitute valid service of notice, particularly when the sole proprietor had expired and the petitioner claims inability to access them? 2. Whether the order dated 28.04.2024 passed under Section 73 of the GST Act is vitiated due to the absence of a specified date, time, and place for personal hearing in the show cause notice and Form GST DRC-01? Petitioner's Arguments: The petitioner argued that the notices were not properly served as they were inaccessible and that the absence of details for a personal hearing in the notices rendered the subsequent adjudication order invalid. They relied on the fact that the sole proprietor had died, leading to the firm ceasing to exist, and sought a personal hearing for the legal representative. Revenue's Arguments: The State Respondents contended that the proprietorship firm continued to operate after the proprietor's death, with the son, Suresh Kumar, accessing the department's portal and uploading returns until 11.11.2025 without informing the department of the proprietor's demise. They argued that Suresh Kumar had full notice of the orders and that a statutory remedy of appeal under Section 107 was available.