Jabir Hasan vs. Assistant Commissioner State Tax GST
Original PDF →Facts
The petitioner, a GST registration holder, failed to file returns. Consequently, a show cause notice was issued, followed by an order from respondent no. 2. The petitioner appealed this order before respondent no. 1, which was also dismissed. The petitioner challenged both orders in the present writ petition. It is not disputed that Rule 68 of the Central Goods and Services Tax Rules, 2017, mandates the issuance of an electronic notice in Form GSTR-3A to registered persons who fail to furnish returns under Sections 39, 44, 45, or 52. The State's Standing Counsel admitted that no electronic notice was issued; instead, a postal notice was sent.
Held
The Court held that the impugned orders were liable to be set aside due to a failure to follow the mandatory procedure prescribed by Rule 68 of the Central Goods and Services Tax Rules, 2017. The Court noted that Rule 68 clearly stipulates the issuance of an electronic notice in Form GSTR-3A to a registered person who fails to furnish returns. The admission by the State's Standing Counsel that no such electronic notice was issued, and only a postal notice was sent, was critical. The Court reiterated the settled principle of law that when a statute or legislation prescribes a specific procedure, it must be followed. The issuance of a postal notice instead of the mandated electronic notice constituted a procedural illegality. Consequently, the Court quashed the impugned orders dated 26.06.2021 (passed by respondent no. 2) and 28.09.2019 (passed by respondent no. 1). The Authority was directed to comply with Rule 68 and reconsider the petitioner's matter in accordance with the law.
Key Issues
1. Whether the impugned orders are liable to be set aside for non-compliance with the mandatory procedure prescribed under Rule 68 of the Central Goods and Services Tax Rules, 2017, specifically the requirement of issuing an electronic notice in Form GSTR-3A? (Question of law) Petitioner's Contention: The petitioner argued that the impugned orders were passed in violation of the prescribed procedure under Rule 68, as no electronic notice was issued, and only a postal notice was sent. This procedural lapse vitiates the orders. Revenue's Contention: The Standing Counsel for the State admitted that no electronic notice, as envisaged in Rule 68, was issued and that a postal notice was sent instead. The State did not advance any argument to justify this deviation from the prescribed procedure.
Sections Cited
Rule 68, Section 39, Section 44, Section 45, Section 52
AI-generated summary — verify with the full judgment below
SL. No Date Office Notes, reports, orders or proceedings or directions and Registrar’s order with Signatures COURT’S OR JUDGES’S ORDERS
WPMS No. 1547 of 2021 ShriSanjaya Kumar Mishra, J.
Shri Shakti Singh, Advocate for the petitioner. Shri Suyash Pant, Standing Counsel for the State. Heard learned counsel for the parties. In this petition, the petitioner has prayed for issuance of a writ, order or direction for setting aside the order dated 26.06.2021 passed by respondent no. 2 and order dated 28.09.2019 passed by respondent no.
Petitioner is a GST registration holder. He defaulted in filing of returns. For that reason a show cause notice was issued to him. After hearing the petitioner, the Authority has passed the impugned order. It was assailed in an appeal and the appeal was also dismissed. It is not disputed that Rule 68 of the Central Goods and Services Tax Rules, 2017 provides for notice to the non filers of returns – a notice in form GSTR – 3A shall be issued electronically to a registered person who fails to furnish return under Section 39 or Section 44 or Section 45 or Section 52. It is admitted by the learned Standing Counsel for the State that in fact, no notice, as envisaged in Rule 68 of the Rules, was issued, rather a postal notice (Annexure No. 2 to the writ petition) was sent. It is a settled principle of law that if enactment or legislation prescribes a particular procedure to conduct business affairs, then it has to be followed. In this case, impugned order has been passed without issuing electronic notice to the petitioner but by issuing registered postal
notice. In that view of the matter, writ petition is allowed. Impugned orders 26.06.2021 and 28.09.2019 passed by respondent no. 2 and 1 respectively are hereby quashed. The Authority concerned is directed to comply with Rule 68 of the aforesaid Rules and reconsider the matter of the petitioner, in accordance with law. .
(S.K. Mishra, J.) 10.11.2021 SKS
Reproduced from the public record of the Uttarakhand High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.