Even if no response is filed by assessee to notices u/s 61 and 73 of GST Act, it was incumbent on the Department to pass an order in compliance of provisions of Section 75(6) of the Act
In a recent judgment, Hon’ble Allahabad High Court quashed order passed u/s 73 of the UPGST Act, 2017 holding that even if no response was filed to the notices under Sections 61 and 73 of the Act, it was incumbent on the Department to pass an order in compliance of provisions of Section 75(6) of the Act as a final order should be self contained and merely making reference to the previous notice while passing the said order does not suffice for making it a self contained order.
ABCAUS Case Law Citation:
4504 (2025) (04) abcaus.in HC
In the instant case, the assessee / Petitioner had challenged the order passed by the Deputy Commissioner GST under Section 73 of the UPGST Act, 2017 (‘the Act’).
It was contended that the petitioner was issued notice under Section 61 of the Act intimating discrepancies in the return after scrutiny which was uploaded on the Additional Tab of the portal, the petitioner on account of such uploading was not aware of the said notice and as such, could not file response to the same.
It was further submitted that thereafter another show cause notice under Section 73 of the Act was issued which was again uploaded on the Additional Tab and on the date of personal hearing was fixed on the same date as the date fixed for compliance to the second notice.
It was submitted that on account of uploading at the incorrect Tab on the portal, the petitioner was not aware of the proceedings, which resulted in passing of the impugned order under Section 73(9) of the Act whereby huge demand had been created against the petitioner.
It was also submitted that though the show cause notice indicated penalty of a lesser amount, penalty imposed was much higher, which was beyond the show cause notice and on that count, the order impugned cannot be sustained.
Further, it was the case of the Petitioner that the order passed under Section 73(9) of the Act, was 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 had been passed without indicating any reason whatsoever and on that count also the order impugned was bad and deserves to be set aside.
The Department submitted that plea regarding uploading of the notices under Sections 61 and 73 of the Act in the wrong Tab apparently had no basis as reminders were issued to the petitioner qua which, specific indications in the portal had been made and therefore, the plea raised in this regard had no substance. The petitioner had chosen not to respond to the notices and therefore, passing of the order impugned does not call for any interference.
The Hon’ble High Court observed that the plea raised pertaining to purported wrong uploading of the notices, apparently lost significance once reminders had been issued to the petitioner.
However, the Hon’ble High Court observed that a bare look at the order impugned revealed that the same only made reference to the show cause notice, non appearance and that based on the returns filed and information available on the departmental portal, out of fourteen points for which notice under Section 61 was issued, notice under Section 73 was issued qua point nos. 4 and 13 and the same were quoted ad verbatim in the final order and though the penalty was proposed for a lesser amount, the same was enhanced without indicating any reason.
The Hon’ble High Court observed that the manner of passing of order fell 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 of the decision are totally missing from the impugned order.
The Hon’ble High Court opined that even if no response was filed to the notices under Sections 61 and 73 of the Act, it was incumbent on the Department to pass an order in compliance of provisions of Section 75(6) of the Act as a final order should be self contained and merely making reference to the previous notice while passing the said order does not suffice for making it a self contained order.
Consequently, the petition was allowed. The impugned order was quashed and set aside. The matter was remanded back to provide an opportunity of filing response to the show cause notice issued under Section 73 of the Act to the petitioner.
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