Gauhati High Court
Page No.# 1/4 vs The State Of Assam And 2 Ors on 24 June, 2025
Page No.# 1/4
GAHC010052512025
2025:GAU-AS:8502
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1467/2025
BISWA RANJAN BORAH
S/O GIBAN CH. BORAH, R/O HOUSE NO. 37, A.K. AZAD ROAD, BIRUBARI,
GOPINATH NAGAR, P.O.- BIRUBARI, P.S.- PALTAN BAZAR, DIST- KAMRUP
(M), ASSAM, 781016
VERSUS
THE STATE OF ASSAM AND 2 ORS.
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO
GOVERNMENT OF ASSAM, DEPARTMENT OF FINANCE AND TAXATION,
DISPUR, ASSAM
2:THE PRINCIPAL COMMISSIONER
STATE TAX
KAR BHAWAN
G.S. ROAD
DISPUR
GUWAHATI-781006
3:THE ASSISTANT COMMISSIONER OF STATE TAX
KAR BHAWAN
GUWAHATI- D 6
ASSA
Advocate for the Petitioner : MR. A K GUPTA, MR. R K MAHANTA,MR. R S MISHRA
Advocate for the Respondent : SC, FINANCE AND TAXATION,
Page No.# 2/4
BEFORE
HON'BLE MR. JUSTICE ARUN DEV CHOUDHURY
ORDER
24-06-2025
1. Heard Mr. R.S.Mishra, learned counsel for the petitioner and Mr. B. Choudhury, learned
Standing counsel, Finance and Taxation Department, Assam for the respondent Nos. 1
to 3.
2. The case of the petitioner herein is that the Assistant Commissioner of State Tax,
Guwahati-D-6, respondent No. 3, has issued the summary of show cause notice dated
20.05.2024 without issuing any show cause notice under Section 73 (1) of the CGST
Act, 2017 and the summary of order dated 30.08.2024 without passing any order
under Section 73 (9) of the CGST Act, 2017. It is further case of the petitioner that he
has sought for an opportunity of hearing, however, without giving any opportunity of
hearing, the summary of order has been passed.
3. The respondents have filed an affidavit and submitted that there was a summary of
show cause notice, but no show cause notice in terms of Section 73(1) of the CGST
Act, 2017 was issued.
4. Both the learned counsels for the parties submit that similar issue has already been
dealt in Para 29 of the judgment and order (oral) dated 26.09.2024 passed by a Co-
ordinate Bench in WP(C) No. 3912/2024 and other connected petitions (Construction
Catalysers Pvt. Ltd. Vs. the State of Assam and 2 others). Accordingly, this writ
petition is having similar issue, the determination made in said Construction
Catalysers Pvt. Ltd (supra), shall cover the present case, more particularly, the
conclusion and direction arrived at Para 29.
5. Para 29 of Construction Catalysers Pvt. Ltd (supra), being bone of contention, is
Page No.# 3/4
quoted herein below:-
“CONCLUSION
29. On the basis of the above analysis and determination, this Court
disposes of the instant batch of writ petitions with the following
observations and directions:-
(A) The Summary of the Show Cause Notice in GST DRC-01 is not a
substitute to the Show Cause Notice to be issued in terms with Section
73 (1) of the Central Act as well as the State Act. Irrespective of issuance
of the Summary of the Show Cause Notice, the Proper Officer has to
issue a Show Cause Notice to put the provision of Section 73 into
motion.
(B) The Show Cause Notice to be issued in terms with Section 73 (1) of
the Central Act or State Act cannot be confused with the Statement of
the determination of tax to be issued in terms with Section 73 (3) of the
Central Act or the State Act. In the instant writ petitions, the attachment
to the Summary of Show Cause Notice in GST DRC-01 is only the
Statement of the determination of tax in terms with Section 73 (3). The
said Statement of determination of tax cannot substitute the requirement
for issuance of the Show Cause Notice by the Proper Officer in terms
with Section 73 (1) of the Central or the State Act. Under such
circumstances, initiation of the proceedings under Section 73 against the
petitioners in the instant batch of writ petitions without the Show Cause
Notice is bad in law and interfered with.
(C) It is also noticed that the Show Cause Notice and the Statement in
terms with Section 73 (1) and 73 (3) of both the Central Act or the State
Act respectively are required to be issued only by the Proper Officer as
defined in Section 2 (91). Additionally, the order under Section 73 (9) is
also required to be passed by the Proper officer. The Summary of the
Show Cause Notice, the Summary of the Statement under Section 73 (3)
and the Summary of the Order passed in terms with Section 73 (9) are
to be issued in GST DRC-01, GST DCR-02 and GST DRC-07 respectively.
The issuance of the Summary of the Show Cause Notice, Summary of
the Statement and Summary of the Order do not dispense with the
requirement of issuance of a proper Show Cause Notice and Statement
as well as Page passing of the Order as per the mandate of Section 73
by the Proper Officer. As initiation of a proceedings under Section 73 and
passing of an order under the same provision have consequences. The
Show Cause Notice, Statement as well as the Order are all required to be
authenticated in the manner stipulated in Rule 26 (3) of the Rules of
2017.
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(D) The Impugned Orders challenged in the writ petitions are in
violation of Section 75 (4) as no opportunity of hearing was given as
already discussed herein above.
(E) The impugned orders challenged in the instant batch of writ
petitions, the details of which are given in the Appendix attached to the
instant judgment are set aside and quashed.
(F) This Court also cannot be unmindful of the fact that it is on account
of certain technicalities and the manner in which the impugned orders
were passed, this Court interfered with the impugned orders and hence
set aside and quashed the same. It is also relevant to take note of that
the respondent authorities were under the impression that issuance of
attachment of the determination of tax which was attached to the
Summary of the Show Cause Notice would constitute a valid Show Cause
Notice. Under such circumstances, in the interest of justice, this Court
while setting aside the impugned Orders-in-Original as detailed out in the
Appendix, grants liberty to the respondent authorities to initiate de novo
proceedings under Section 73, if deemed fit for the relevant financial
year in question. This Court further observes and directs that the period
from the date of issuance the Summary of the Show Cause Notices upon
the petitioners till the date a certified copy of the instant judgment is
served upon the Proper Officer, be excluded while computing the period
prescribed for passing of the order under Section 73 (10) of the Central
Act as well as the State Act as the case may be.”
6. The issue raised in Construction Catalysers Pvt. Ltd (supra) and the present
petition is similar and therefore, the determination made in Construction Catalysers Pvt.
Ltd (supra), shall accordingly cover the present petition and as agreed to by the learned
counsel for the parties, the present writ petition stands disposed of by setting aside the
summary of show cause notice dated 20.05.2024 and the summary of order dated
30.08.2024 in terms of the determination and conclusion arrived at para 29 of Construction
Catalysers Pvt. Ltd (supra).
JUDGE
Comparing Assistant