SHIV KISHOR CONSTRUCTION PRIVATE LIMITED Vs. UNION OF INDIA
HIGH COURT OF PATNA
Shiv Kishor Construction Private Limited
UNION OF INDIA
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(1.) Petitioner has prayed for the following relief(s):-
i. For setting aside the show cause notice dtd. 31/12/2020 and consequential DRC 01 dtd. 31/12/2020 for the period April 2019 to March' 2020 issued by the Assistant Commissioner of State Tax, Patna Central Circle, Bihar, Patna in exercise of the jurisdiction conferred under Sec. 73 of the Bihar Goods and Services Tax Act, 2017, whereby Tax, and penalty of Rs.3666479.54 was calculated and the petitioner was asked to submit reply by 30/1/2021 . The show cause is completely without jurisdiction as same was issued without complying the mandatory provision, i.e., Sec. 61 of the Central/Bihar Goods and Services Tax Act, 2017.
ii. For setting aside the order dtd. 9/1/2021 issued by the Assistant Commissioner, State Tax, Patna Central Circle, Patna, whereby final order has been passed under Sec. 73 (9) of the Central Goods and Services Tax Act, 2017 and it has been ordered to issue DRC-07 of Rs.2486750.26 in spite of the fact that the same authorities vide show cause notice dtd. 31/12/2020, directed the petitioner to submit his reply / show cause on or before 31/1/2021 but the final order was passed 9/1/2021 itself in Rross violation of principle of natural Justice. The order is also bad in law and completely without jurisdiction for the reason of non-compliance of mandatory requirement of Sec. 61 of the Central/Bihar Goods and Services Tax Act, 2017. iii. For setting aside consequential DRC - 07 dtd. 13/1/2021 issued the signature of Assistant Commission State Tax, Patna Central Circle, Bihar, Patna for the period April' 2019 to March'2020 whereby the petitioner was directed to pay Rs.24,86,750.26 as a tax and penalty.
iv. v. The Petitioner further prays that after setting aside the aforementioned impugned orders, the matter be remanded back to the respondents authorities with a direction to comply the mandatory requirement envisaged under Sec. 61 of the Central / Bihar Goods and Service Tax Act, 2017, as the whole disputes related to the scrutiny of return and the matter may be resolved in exercise of jurisdiction under Sec. 61 of the Act, as the petitioner has not at all evaded / concealed / suppressed its supply, and the difference amount of Gross supply including Patrol and Diesel and all taxes added, which are Non-GST item as per Sec. 9 of the Act, 2017, read with the Curious case of Non-GST Goods available on website of Taxguru.in. vi. For any other relief for which the petitioner may be deemed entitled to. In view of the stand taken by the respondents in the counter affidavit and more specifically in para -5 thereof, which is reproduced as under:-
(2.) That it is important to mention here that clerical mistake the order dated 09.012021 and the demand Notice DRC-07 has been uploaded on the GSM Portal with the Reference number of second proceeding which is auto picked by system due to some technical error and only due to this technical error the petitioner has filed the present writ petition without bringing the same into the knowledge of the answering respondent.
Shri Vivek Prasad, learned counsel for the Revenue fairly states that the mater be remanded to the authorities for consideration afresh. We notice that the statutory period enabling the petitioner to the show cause was not afforded and also there was a technical error as admitted by the Revenue. Hence, the impugned orders dtd. 9/1/2021 (Annexure-5) and 13/1/2021 (Annexure-6) need to be quashed. Ordered accordingly.
(3.) The petition is disposed of with further direction to the petitioner to appear before the authority concerned on 27/1/2022 at 10:30 A.M.;
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