M/S.Big Ben vs. Assistant Commissioner Of

Heard learned counsel for the petitioner and learned HCGP for the respondent and perused the material on record.

A perusal of material on record will indicate that pursuant to pre-intimation in Form DRC-01A dated 30.12.2024, the petitioner filed its reply dated 05.11.2024. Subsequently, the respondent issued a show-cause notice dated 08.11.2024 under Section 73 of the CGST/KGST Act, 2017 alleging that the petitioner had wrongly/excessively HC-KAR NC: 2025:KHC:40508 availed ITC in contraventions to the provisions of the Act. Since the petitioner did not submit his reply to the said show-cause notice, the respondent proceeded to pass the impugned order dated 26.02.2025 under Section 73(9) of the KGST/CGST Act, 2017 confirming the total demand of Rs.29,10,327/- including tax, interest and penalty. Aggrieved by the said impugned order, the petitioner having no option has approached this Court by way of present petition interalia contending that the inability and omission on the part of the petitioner to submit a reply to the show-cause notice and contest the proceedings was due to bonafide reasons, unavoidable circumstances and sufficient cause and submits that if one more opportunity is provided, by setting aside the impugned order, the petitioner would submit a reply to the show-cause notice and contest the proceedings.

Learned counsel for the petitioner submits that the said show-cause was uploaded under the head "Additional Notices and Order", in the GST Portal and the HC-KAR NC: 2025:KHC:40508 same went un-noticed by the petitioner. Since the respondent uploaded the show-cause notice under different head and the same was not brought to the notice of the petitioner, the petitioner could not submit replies/ documents to the show-cause notice under section 73(1) of the CGST/KGST Act, 2017. Pursuant to the adjudication order and appeal order being passed by the respondent, the petitioner with no option has approached this Court by way of the present petition interalia contending that the inability and omission on the part of the petitioner to submit a reply to the show-cause notice was due to bonafide reasons, unavoidable circumstances and sufficient cause and submits that if one more opportunity is provided by setting aside the impugned order, the petitioner would submit a reply to the show-cause notice and contest the proceedings.

Per contra, learned HCGP for the respondent submits that since the show-cause notice was duly communicated electronically to the petitioner by uploading HC-KAR NC: 2025:KHC:40508 the same on GST portal as well as e-mail, the petitioner cannot complain that he was not aware of impugned notice and as such, there is no merit in the petition and the same is liable to be dismissed.

Though several contentions have been urged by both sides as regards the petitioner not having noticed show-cause notice and his inability and omission to reply to the said show cause notice, is a matter of record and an undisputed fact that the petitioner did not submit his reply to the show-cause notice, which culminated in the impugned ex-parte order.

Under these circumstances, having regard to the specific assertion on the part of the petitioner that his inability and omission to submit replies and contest the proceedings was due to bonafide reasons, unavoidable circumstances and sufficient cause, I deem it just and appropriate to adopt a justice oriented approach and provide one more opportunity to the petitioner by setting aside the impugned order dated 26.02.2025 and remitting HC-KAR NC: 2025:KHC:40508 the matter back to the respondent for reconsideration of the matter afresh in accordance with law, from the stage of petitioner submitting reply to the impugned show-cause notice dated 08.11.2024. 8. In the result, I pass the following: ORDER