Jayanta Ghosh vs. Union Of INDIA And Ors.
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The petitioner, Jayanta Ghosh, filed a writ petition alleging that the respondents passed an order under Section 73(9) of the CGST/WBGST Act, 2017, on December 30, 2023, without issuing a show cause notice in Form GST DRC-01 and uploading it on the portal. The respondents contended that a show cause-cum-demand notice dated September 30, 2023, along with a communication for personal hearing, was duly served on the petitioner via his registered email. They also submitted that a demand was raised in Form GST DRC-07 on June 14, 2024, during the pendency of the writ petition, though they admitted technical constraints prevented accurate recording of the tax period. The tax periods under consideration were 2017-18 to 2022-23.
Held
The Court held that while the petitioner was duly served with the show cause notice prior to the adjudication order dated December 30, 2023, for the tax periods 2017-18 to 2022-23, and that service by e-mail is contemplated under Section 169 of the CGST/WBGST Act, 2017, there was an irregularity. The Court noted that the summary of the order had not been uploaded on the portal and that the Form GST DRC-07, uploaded belatedly on June 14, 2024, was defective. As a defective Form DRC-07 cannot be enforced and in the absence of its service on the petitioner, the original order dated December 30, 2023, could not be given effect to. The Court directed the respondents to upload a summary of the order along with Form GST DRC-07 on the portal. Until this was done, the order dated December 30, 2023, was not to be given effect. The petitioner was granted liberty to prefer an appeal from the December 30, 2023 order upon the uploading of the summary and Form GST DRC-07, with the uploading date to be treated as the revised date of communication.
Key Issues
1. Whether the service of the show cause notice in Form GST DRC-01 through e-mail communication, without uploading it on the portal, is a valid mode of service under Section 169 of the CGST/WBGST Act, 2017, for the determination order dated December 30, 2023. 2. Whether the Form GST DRC-07, uploaded belatedly on June 14, 2024, is defective and unenforceable due to technical constraints preventing the recording of the tax period and lack of proper service on the petitioner. Petitioner's arguments: The petitioner argued that the determination order was passed without a proper show cause notice being issued and uploaded on the portal. Respondents' arguments: The respondents argued that the show cause notice was duly served via e-mail as per Section 169 of the Act. They also submitted that a demand notice in Form GST DRC-07 was issued, acknowledging technical limitations in recording the tax period.
Sections Cited
Section 73(9), Section 169
AI-generated summary — verify with the full judgment below
M/L 34 21.08.2024 sb Ct 5
IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURI ICTION APPELLATE SIDE
WPA 14935 of 2024
Jayanta Ghosh Versus Union of India & Ors.
Mr. Souvik Guha
Mr. Siddhartha Dasgupta
Mr. Palash Majumder
… For the petitioner.
Mr. Bhaskar Prasad Banerjee
Ms. Ekta Sinha
… For the respondent CGST & CX
The petitioner by alleging that without issuance of show cause in Form GST DRC-01 and without uploading the same on the portal, a determination had been made by the respondents on 30th December, 2023 under Section 73(9) of CGST/WBGST Act 2017 (hereinafter referred to as the “said Act”), has filed this writ petition.
Mr. Banerjee, learned advocate appearing on behalf of the respondents, by placing before this Court the copies of show cause-cum-demand notice dated 30th September, 2023, submits that the said demand notice along with the communication for attending personal hearing was duly served on the petitioner through his registered e-mail address. According to Mr. Banerjee, during the pendency of the present writ petition a demand has also been raised in Form
2 GST DRC-07 on 14th June, 2024. He, however, candidly submits that by reasons of technical constraints, Form GST DRC-07 does not appropriately record the financial year and/or the tax period for which such Form GST DRC-07 had been issued and uploaded.
Having heard the learned advocates appearing for the respective parties, I notice that the petitioner was duly served with the show cause notice prior to passing of the adjudication order dated 30th December, 2023, by the proper officer for the tax period 2017-18 to 2022-23. It is true that the Form GST DRC-01 had not been uploaded on the portal, however, since Section 169 of the CGST/WBGST Act, 2017 contemplates service of notice by e-mail communication, I am of the view that there is no irregularity on the part of the respondents in serving show cause notice in Form GST DRC-01 on the petitioner through e-mail communication. In the instant case, it, however, appears that the summary of the order has not been uploaded in the portal. The Form GST DRC-07 has been uploaded belatedly on 14th June, 2024 is also defective. In absence of service of the Form GST DRC-07 on the petitioner, the same could not have been enforced, likewise a defective Form DRC-07 cannot be enforced.
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Having regard thereto, I permit the respondents to upload a summary of the order along with Form GST DRC-07 on the portal.
Till such time the aforesaid order along with GSTDRC-07 is uploaded, the order in original passed by the respondents on 30th December, 2023 shall not be given effect to.
The petitioner further shall be at liberty to prefer an appeal from the order dated 30th December, 2023, upon the summary of the order and Form GSTDRC 07 being uploaded on the portal. For all practical purpose, the date of uploading of the order shall be treated as revised date of communication of the order on the petitioner.
With the above observations and directions the writ petition is disposed of.
Let the copies of the show cause –cum-demand notice dated 30th September, 2023 as also Form GST DRC -07 dated 14th June, 2024 as placed by Mr. Banerjee in Court today be retained with the records. Urgent Photostat certified copy of this order, if applied for, be made available to the parties upon compliance of requisite formalities.
(Raja Basu Chowdhury, J.)
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Reproduced from the public record of the Calcutta High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.