M/S B.K. And Company vs. State Of Up And Another
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The petitioner, M/s B.K. And Company, filed a writ petition challenging a demand order dated 12.08.2024 issued by the Assistant Commissioner, State Tax, Sector-3, Etawah. This order was passed under Section 73 of the Goods and Services Tax Act, 2017, for the Financial Year 2019-20. The petitioner contended that the impugned order failed to comply with the requirements of Section 75(6) of the Act, as it did not set out the relevant facts and the basis of the decision. The respondents, represented by the State of U.P. and Another, attempted to support the order but did not dispute that the issue was covered by a previous judgment of the Court in M/s Hari Shanker Transport Vs. Commissioner of Commercial Tax U.P.
Held
The Court held that the demand order dated 12.08.2024, issued by the Assistant Commissioner, State Tax, Sector-3, Etawah, was unsustainable. The Court found that, similar to the facts in the M/s Hari Shanker Transport case, the order did not contain any reasons and only incorporated the indication made in the show cause notice by reference. This failure to comply with Section 75(6) of the Goods and Services Tax Act, 2017, which mandates that the proper officer shall set out the relevant facts and the basis of his decision in the order, was fatal to the impugned order. The Court reasoned that even if no response was filed to the notices, it was incumbent upon the authority to pass a self-contained order that provides the basis for its decision. Consequently, the Court quashed and set aside the order dated 12.08.2024 and remanded the matter back to the Assistant Commissioner, State Tax, Sector-3, Etawah. The petitioner was to be provided an opportunity to file a response to the show cause notice within four weeks, after which a fresh order in accordance with law was to be passed after providing an opportunity of hearing.
Key Issues
1. Whether the demand order dated 12.08.2024, issued under Section 73 of the Goods and Services Tax Act, 2017, is liable to be quashed and set aside for non-compliance with the mandatory requirements of Section 75(6) of the Act. Petitioner's contention: The petitioner argued that the impugned order, similar to the order in the cited case of M/s Hari Shanker Transport, merely referenced the show cause notice without providing any independent reasoning or basis for its decision. This failure to set out relevant facts and the basis of the decision violates Section 75(6) of the Act, rendering the order unsustainable. They relied on the judgment in M/s Hari Shanker Transport Vs. Commissioner of Commercial Tax U.P. Respondent's contention: The respondents attempted to support the impugned order but did not dispute that the issue raised by the petitioner was covered by the precedent set in M/s Hari Shanker Transport.
Sections Cited
Section 73, Section 75(6)
AI-generated summary — verify with the full judgment below
Neutral Citation No. - 2025:AHC:91837-DB Chief Justice's Court Case :- WRIT TAX No. - 2606 of 2025 Petitioner :- M/S B.K. And Company Respondent :- State of U.P. and Another Counsel for Petitioner :- Vishwjit Counsel for Respondent :- C.S.C. Hon'ble Arun Bhansali,Chief Justice Hon'ble Kshitij Shailendra,J.
This writ petition is directed against the demand order dated 12.08.2024 issued by the Assistant Commissioner, State Tax, Sector-3, Etawah under Section 73 of the Goods and Services Tax Act, 2017 for the Financial Year 2019-20. 2. Learned counsel with reference to judgment in M/s Hari U.P. : Writ Tax No.606 of 2025, decided on 11.03.2025, made submissions that the order impugned does not fulfill the requirement of Section 75(6) of the Act and, therefore, the order impugned deserves to be quashed and set aside and the matter be remanded back.
Learned counsel appearing for the respondents attempted to support the order impugned, however, does not dispute that the issue as raised is covered by the judgment in the case of M/s Hari Shanker Transport (supra).
In the case of M/s Hari Shanker Transport (supra), this Court, after hearing the parties, came to the following conclusion:- "
A bare look at the order impugned dated 27.04.2024 passed under Section 73(9) of the Act reveals that the same only makes reference to issuance of two notices, the fact that they have not been responded to, and a demand has been raised.
The manner of passing of order dated 27.04.2024 falls foul of the requirements of Section 75(6) of the Act, which requires that 'the proper officer, in his order shall set out the relevant facts and the basis of his decision', the statutory requirements for passing an order by setting out relevant facts and basis for the decision are totally missing from the order dated 27.04.2024. Even if no response was filed to the notices issued under Sections 61 and 73 of the Act, it was incumbent on respondent no.2 to pass an order in compliance of the provisions of Section 75(6) of the Act, as a final order should be self contained and merely making reference to the previous notices while passing the said order does not suffice for making it a self contained order.
Consequently, the petition is allowed. The order dated 27.04.2024 (Annexure-6 to the writ petition) is quashed and set aside. The matter is remanded back to respondent no.2/Deputy Commissioner, State Tax, Sector-3, Sonbhadra to provide an opportunity of filing response to the show cause notice issued under Section 73 of the Act to the petitioner, which response shall be filed within a period of four weeks from today and thereafter, after providing opportunity of hearing, a fresh order in accordance with law be passed."
Admittedly, in the present case, the order dated 12.08.2024 also does not contain any reason and only the indication made in the show cause notice has been incorporated by reference and, therefore, the said order cannot be sustained.
Consequently, the writ petition is allowed.
The order dated 12.08.2024 (Annexures - 3 to the writ petition) is quashed and set aside. The matter is remanded back to Assistant Commissioner, State Tax, Sector-3, Etawah, who shall provide an opportunity of filing response to the show cause notice issued under Section 73 of the Act to the petitioner, which response shall be filed within a period of four weeks from today and, thereafter, after providing opportunity of hearing, a fresh order in accordance with law be passed. Order Date :- 28.5.2025 nd (Kshitij Shailendra, J) (Arun Bhansali, CJ) NISITH DEY High Court of Judicature at Allahabad
Reproduced from the public record of the Allahabad High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.