M/S Sb Construction vs. Commissioner Of Commercial Tax, U.P. Lucknow And Another

WTAX/604/2025HC AllahabadGSTCNR UPHC01074877202510 March 20253 pages

For Petitioner: Aloke Kumar, Puneet Arun

AI SummaryRemanded

Facts

The petitioner, M/s SB Construction, is challenging orders passed by the Assistant Commissioner, State Tax, Sonbhadra. The petitioner received a notice under Section 61 of the GST Act on 18.07.2023, indicating discrepancies in returns, with a personal hearing date marked as 'NA'. The petitioner did not file a reply. Subsequently, a notice under Section 73 of the Act was issued on 08.01.2024, with the personal hearing date also being the reply deadline. The petitioner again did not file a reply, leading to an order dated 29.04.2024 under Section 73(9) creating a tax liability of Rs. 3,01,65,282/-. A rectification application under Section 161 was also rejected on 29.10.2024.

Held

The Court held that the order dated 29.04.2024, passed under Section 73(9) of the GST Act, was in violation of Section 75(6) of the Act. The Court observed that the impugned order merely referenced the issuance of notices and the lack of response, without providing any independent reasoning or basis for the decision. Even in the absence of a reply from the petitioner, it was incumbent upon the respondent to pass a self-contained order that complied with Section 75(6). The Court found that the statutory requirements for setting out relevant facts and the basis for the decision were entirely missing. Therefore, the order was quashed and set aside. The matter was remanded back to the Assistant Commissioner to provide the petitioner an opportunity to file a response to the show cause notice issued under Section 73 within four weeks, followed by a fresh order after providing an opportunity of hearing.

Key Issues

1. Whether the order dated 29.04.2024, passed under Section 73(9) of the Goods and Services Tax Act, 2017, is bad in law for non-compliance with Section 75(6) of the Act, which mandates the adjudicating officer to set out the relevant facts and basis of the decision. Petitioner's contention: The order impugned is bad as it lacks any reasoning whatsoever and fails to set out the relevant facts and basis of the decision, contrary to Section 75(6) of the Act. Respondent's contention: The petitioner was provided sufficient opportunity through notices 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:36865-DB Chief Justice's Court Case :- WRIT TAX No. - 604 of 2025 Petitioner :- M/s SB Construction Respondent :- Commissioner of Commercial Tax, U.P. Lucknow and another Counsel for Petitioner :- 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 29.04.2024 and 29.10.2024 passed by the Assistant Commissioner, State Tax, Sector-5, 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 18.07.2023, wherein it was required to submit reply by 17.08.2023, however, in the column pertaining to date of personal hearing, 'NA' was indicated. The petitioner did not file any reply and no opportunity of hearing was granted, resulting in issuance of notice under Section 73 of the Act on 08.01.2024. In the notice, the reply was to be filed by 08.02.2024 and date of personal hearing indicated was also the same. The petitioner did not file reply to the said notice as well, resulting in passing of the order impugned dated 29.04.2024 under Section 73(9) of the Act creating a liability of Rs. 3,01,65,282/-. 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 29.10.2024. 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 29.04.2024 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 29.04.2024 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 29.04.2024. 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 29.04.2024 (Annexure-6 to the writ petition) is quashed and set aside. The matter is remanded back to respondent no.2/Assistant Commissioner, State Tax, Sector-5, 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.