Amex Services And Anr vs. Deputy Commissioner, State Tax, Asansol Charge And Ors.
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The petitioners, Amex Services & Anr., engaged in goods transport agency services, challenged an order dated December 29, 2023, issued under Section 73(9) of the WBGST & CGST Act, 2017, for the period July 1, 2017, to March 31, 2018. The petitioners' returns were scrutinized under Section 61 of the Act. They contended that the proper officer failed to provide them with Form GST ASMT-10, which is required to notify discrepancies, before issuing a notice dated September 26, 2023, and a show cause notice dated September 29, 2023. This lack of notification, they argued, prevented them from responding appropriately to the show cause notice and vitiated the subsequent adjudication order. The State acknowledged that Form GST ASMT-10 was not served on the petitioners.
Held
The Court held that the adjudication order dated December 29, 2023, issued under Section 73(9) of the WBGST & CGST Act, 2017, was vitiated due to the violation of principles of natural justice. The Court reasoned that it was the obligation of the proper officer, in terms of Section 61 of the said Act read with Rule 99 of the said Rules, to make available Form GST ASMT-10 to the petitioners, clearly identifying the noticed discrepancies. Since this procedural step was not followed, the petitioners were unable to appropriately respond to the show cause notice. Consequently, the Court kept the impugned order in abeyance and directed the proper officer to provide Form GST ASMT-10 to the petitioners within two weeks, allowing them an opportunity to file an additional response to the show cause notice. Thereafter, the proper officer is to afford a hearing and pass a fresh order within eight weeks.
Key Issues
1. Whether the adjudication order issued under Section 73(9) of the WBGST & CGST Act, 2017, is vitiated due to the non-furnishing of Form GST ASMT-10 to the petitioners, thereby violating principles of natural justice? The petitioners argued that Section 61 of the said Act and Rule 99 of the said Rules mandate the proper officer to identify discrepancies and notify the assessee in Form GST ASMT-10. They contended that since this form was not provided, they could not adequately respond to the show cause notice, rendering the adjudication order invalid. The State acknowledged the non-furnishing of Form GST ASMT-10.
Sections Cited
Section 73(9), Section 61, Rule 99
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2 22.05.2024. Sb IN THE HIGH COURT AT CALCUTTA ct.5 CONSTITUTIONAL WRIT JURI ICTION APPELLATE SIDE
WPA 9391 of 2024 Amex Services & Anr. -vs- Deputy Commissioner, State Tax, Assansol Charge & Ors. & Ors. Mr. Sumit Ghosh …For the petitioners Mr. Anirban Ray Mr. T.M. Siddiqui Mr. Saptak Sanyal …For the State
By way of the present writ petition the petitioners have challenged
the order
dated
29th December 2023 issued under Section 73(9) of the WBGST & CGST Act 2017 (hereinafter referred to as the “said Act”) for the period 1st July 2017 till 31st March 2018. According to the petitioners, they are engaged in the business of providing goods transport agency services and were duly registered under the said Act. The returns filed by the petitioners were scrutinized by the proper officer in terms of Section 61 of the said Act. Unfortunately, the proper officer did not inform the petitioner of the discrepancies by making available the form GST ASMT-10 for the petitioners to take steps.
The petitioners contend that when the intimation of liability was given to the petitioners by issuance of a notice dated 26th September 2023 or when the show cause notice dated 29th September 2023 was issued, the petitioners were not favoured with form GST ASMT-10,
for the petitioners to be made aware with regard to the discrepancies.
Mr. Ghosh, learned advocate appearing for the petitioners by drawing attention of this Court to the show cause notice and by referring to Section 61 of the said Act and Rule 99 of the WBGST Rules, 1999 (hereinafter referred to as the “said Rules”) submits that it is the obligation of the proper officer to identify the discrepancies and to notify the petitioners in Form GST ASMT-10. In the present case since, the petitioners had not been notified of the aforesaid discrepancies by issuance of Form GST ASMT – 10, the petitioners could not appropriately respond to the show cause notice and the adjudication order issued under Section 73(9) of the said Act stands vitiated on such ground.
Mr. Siddiqui, learned advocate appearing for the State acknowledges the fact that the petitioners have not been served with a copy of the Form GST ASMT – 10. 5. Having heard the learned advocates appearing for the respective parties and having considered the materials on record, including the provisions of Section 61 of the said Act and Rule 99 of the said Rules, I am of the view that it was the obligation of the proper officer before passing any order in terms of Rule 99 of the said Rules read with Section 61 of the said Act, to make available to the petitioner the Form GST ASMT – 10 and to identifying therein, the discrepancies noticed by the proper officer while scrutinizing the returns. Since, the same had not been made available to the 2
petitioners, the petitioners could not have appropriately respond to the show cause notice. The aforesaid order thus, stands vitiated on the ground of violation of principles of natural justice.
Having regard to the aforesaid, I propose to and do hereby keep the order passed under Section 73(9) of the said Act, dated 29th December, 2023, in abeyance and direct the proper officer to make available Form GST ASMT – 10 within two week from date and to provide appropriate opportunity to the petitioners to file additional response to the show cause notice dated 29th September 2023 and thereafter to afford an opportunity of hearing to the petitioners.
If the petitioners file response to the show cause or fail to respond to the same upon receipt of a copy of Form GST ASMT – 10 within a period of two weeks from the date of service of such form, the proper officer upon giving an opportunity of hearing to the petitioners in the manner as aforesaid shall consider the same and if on a proper consideration thereof, the proper officer is of the view that the said order can or cannot be sustained, he shall pass a fresh order and dispose of the entire proceedings, preferably within a period of 8 weeks from date.
With the above observations and directions, the writ petition being WPA 9391 of 2024 is disposed of.
All parties to act on the basis of the server copy of this order duly downloaded from this Court’s official website. (Raja Basu Chowdhury, J.) 3
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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.