M/S Hari Shanker Transport vs. Commissioner Of Commercial Tax Up Lucknow And Another

WTAX/606/2025HC AllahabadGSTCNR UPHC01074869202510 March 20253 pages

For Petitioner: Adarsh Singh, Aloke Kumar, Puneet Arun

AI SummaryRemanded

Facts

The petitioner, M/s Hari Shanker Transport, is challenging orders passed by the Deputy Commissioner, State Tax, Sector-3, Sonbhadra. The proceedings began with a notice under Section 61 of the GST Act on 30.11.2023 due to discrepancies found during scrutiny. The petitioner claims they were unaware of this notice as it was uploaded on the Department's portal. Consequently, a notice under Section 73 of the Act was issued on 27.01.2024, with a reply due by 27.02.2024 and a personal hearing on 20.02.2024. The petitioner did not respond, leading to an order dated 27.04.2024 under Section 73(9) creating a demand of Rs. 85,84,759/-. A subsequent rectification application under Section 161 was also rejected by an order dated 25.10.2024.

Held

The Court held that the order dated 27.04.2024, passed under Section 73(9) of the GST Act, was in violation of Section 75(6) of the Act. Section 75(6) mandates that the proper officer, in their order, must set out the relevant facts and the basis of their decision. The impugned order merely referred to the issuance of notices and the non-response from the petitioner, failing to provide any independent reasoning or basis for the demand raised. The Court emphasized that even in the absence of a reply, the adjudicating authority must pass a self-contained order that complies with statutory requirements. Merely referencing previous notices is insufficient. Therefore, the order dated 27.04.2024 was quashed and set aside. The matter was remanded back to the Deputy Commissioner, State Tax, Sector-3, Sonbhadra, to provide the petitioner with an opportunity to file a response to the Section 73 notice within four weeks, after which a fresh order in accordance with the law is to be passed.

Key Issues

1. Whether the order dated 27.04.2024 passed under Section 73(9) of the Goods and Services Tax Act, 2017, is bad in law for failing to set out the relevant facts and the basis of the decision, as required by Section 75(6) of the Act? Petitioner's contention: The order dated 27.04.2024 is contrary to Section 75(6) of the Act because it lacks any reasoning or basis for the decision, merely referencing previous notices and the non-filing of a reply. This makes the order unsustainable. Respondent's contention: The petitioner was afforded sufficient opportunity through notices issued under Sections 61 and 73 of the Act. Since the petitioner failed to avail these opportunities, the passing of the impugned order cannot be faulted.

Sections Cited

Section 61, Section 73, Section 73(9), Section 75(6), Section 161

AI-generated summary — verify with the full judgment below

Cause title — parties, addresses and appearances

Neutral Citation No. - 2025:AHC:36868-DB Chief Justice's Court Case :- WRIT TAX No. - 606 of 2025 Petitioner :- M/s Hari Shanker Transport Respondent :- Commissioner of Commercial Tax U.P. Lucknow and another Counsel for Petitioner :- Adarsh Singh, Aloke Kumar, Puneet Arun Counsel for Respondent :- Ankur Agarwal (S.C.) Hon'ble Arun Bhansali, Chief Justice Hon'ble Kshitij Shailendra, J. 1. This petition is directed against orders dated 27.04.2024 and 25.10.2024 passed by the Deputy Commissioner, State Tax, Sector-3, Sonbhadra under Section 73(9) and Section 161 of the Goods and Services Tax Act, 2017 (for short, 'the Act') respectively. 2. Submissions have been made that the petitioner was issued notice under Section 61 of the Act intimating discrepancies in the return after scrutiny on 30.11.2023. The petitioner did not file any reply to said notice being unaware of issuance of the same, as the same was uploaded on the Portal of the Department, resulting in issuance of notice under Section 73 of the Act on 27.01.2024. In the said notice, the reply was to be filed by 27.02.2024 and date of personal hearing was indicated as 20.02.2024. The petitioner did not file reply to the said notice as well, resulting in passing of the order impugned dated 27.04.2024 under Section 73(9) of the Act creating a liability of Rs. 85,84,759/-. 3. The petitioner, as advised, filed rectification application under Section 161 of the Act, however, the said rectification application also came to be rejected by order dated 25.10.2024. 4. Submissions have been made that the order passed under Section 73(9) of the Act, is contrary to the requirement of Section 75(6) of the Act, wherein it is required of the adjudicating officer to set out relevant facts and basis of his decision whereas, the order impugned has been passed without indicating any reason whatsoever and on that count alone the order impugned is bad and deserves to be set aside. 5. Learned counsel for the respondents supported the order impugned. It was submitted that the petitioner was given sufficient opportunity by issuance of notices under Sections 61 and 73 of the Act, however, when it did not avail the same, the passing of the order impugned cannot be faulted. 6. We have considered the submissions made by counsel for the parties and have perused the material available on record. 7. 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. 8. 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. Order Date :- 11.3.2025 AHA (Kshitij Shailendra, J) (Arun Bhansali, CJ) AFZAL HUSAIN ABBASI 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.