Ms Sarada Refrigeration And Air Condition And Anr vs. The State Of Assam And 2 Ors

The learned counsel appearing on behalf of the Petitioners submitted that it is the requirement of law in terms with Section 73(1) of the Assam Goods and Services Tax Act, 2017 (for short, ‘the Act of 2017’), that there has to be a Show Cause Notice. The Summary of Show Cause Notice cannot be a substitute to the Show Cause Notice to be issued in terms of Section 73(1) of the Act of 2017. The learned counsel appearing on behalf of the Petitioners further submitted that Rule 142(1)(a) of the Central Goods and Services Tax Rules, 2017 categorically mentions about the Summary of the Show Cause Notice to be issued in Form DRC-01. In that regard, the learned counsel referred to the Page No.# 4/10 and Taxation Department of the Government of Assam that as it is a technical mistake, the period of limitation which is otherwise prescribed under Section 73(10) of the Act of 2017 to pass an order in terms with Section 73(9) of the Act of 2017 be excluded from the date of issuance of the said Show Cause Notice so that appropriate orders can be passed.

This Court, having perused the materials on record, finds it relevant to take note of the observations of this Court at paragraph Nos.20, 21, 22, 23 & 24 of the said judgment in the case of Construction Catalysers Private Limited (supra) and it is the opinion of this Court that the issue involved in the present proceedings is squarely covered by the said observations and opinion rendered in the case of Construction Catalysers Private Limited (supra). Accordingly, paragraph Nos.20 to 24, being relevant, are reproduced herein under:- “(ii) Whether the determination of tax as well as the order attached to the Summary to the Show Cause Notice in GST DRC-01 and the Summary of the Order in GST DRC-07 can be said to be the Show Case Notice and Order respectively.

While deciding supra, this Court duly dealt with what would constitute a Show Cause Notice, the Statement as per Section 73 (3) as well as the Summary to the Show Cause Notice in GST DRC- 01 and Summary of the Statement in GST DRC-02. This Court had also opined above that the statement to be provided by the Proper

Rule 26 (3) of the Rules of 2017 categorically stipulates as to how notices, certificates and orders are to be authenticated. The said Sub-Rule is reproduced herein under:- “26.(3) All notices, certificates and orders under the provisions of this Chapter shall be issued electronically by the proper officer or any other officer authorised to issue such notices or certificates or orders, through digital signature certificate [or through E-signature as specified under the provisions of the Information Technology Act, 2000 (21 of 2000) or verified by any other mode of signature or verification as notified by the Board in this behalf.]” A perusal of the above quoted Sub-Rule would show that notices, certificates and orders under the provisions of Chapter III

Now therefore a question arises as to whether Rule 26 (3) can be applicable to Chapter-XVIII when the said Sub-Rule on refers to ChapterIII. In the case of M/s Silver Oak Villas LLP (supra), the learned Division Bench of the Telangana High Court had applied Rule 26 (3) of the Rules of 2017 even to Chapter-XVIII of the Rules of 2017. In the case of A.V. Bhanoji Row (supra), the learned Division Bench of the Andhra Pradesh High Court held that the signatures cannot be dispensed with and Sections 160 and 169 cannot save an order, notice, communication which did not contain a signature. In another judgment of the learned Division Bench of Delhi High Court in the case of Railsyls Engineers Private Limited vs. Additional Commissioner of Central goods and Services Tax (Appeals- 11) and Anr., reported in (2023) 112 GSTR 143, the Delhi High Court held that there was a requirement of at least putting the digital signatures on the Show Cause Notice and Order in Original.

A perusal of the provisions of Section 73 would show that the Show Cause Notice is required to be issued by the Proper Officer, the Statement under Section 73 (3) is to be issued by the Proper

It is also important to note that the Act only stipulates that notice would be issued and order would be passed by the Proper Officer. The manner in which the Proper Officer would authenticate the notice(s) or the order(s) in so far as other Chapters of the Rules of 2017 is silent except Chapter-III. Taking into account the utmost necessity of the authentication by the Proper Officer, this Court is of the opinion unless appropriate insertion are made in the Rules or notification are issued as per the directions of the Board to fill the void in the Rules of 2017, the authentication in the manner stipulated in Rule 26 (3) of the Rules of 2017 has to be applied as and when the Proper Officer is required to issue notice or Statement and pass Order in terms with the Act.”

This Court also takes notice that in the case of Construction Catalysers Private Limited (supra), this Court had set aside the Orders in Original assailed therein, but while doing so granted

In that view of the matter, the instant writ petition stands disposed of with the following observations and directions: (i) The impugned Order in Original dated 08.03.2024 passed by the Respondent No.3 is set aside and quashed. (ii) This Court is not setting aside the Summary of the Show Cause Notice which was issued on 18.12.2023, which is Annexure-2 to the writ petition. However, directs the Respondent No.3 who is the proper officer to issue a Show Cause Notice in terms with Section 73(1) of the Act of 2017 detailing out the cause of action for initiation of the said proceedings under Section 73 of the Act of 2017. (iii) The said Show Cause Notice for which liberty is granted, shall date back to the date of issuance of the Summary of the Show Cause Notice dated 18.12.2023. (iv) This Court further observes and directs that the period from the date of issuance of the Summary of the Show Cause Notice dated 18.12.2023 till the date a certified copy