SEAGULL MARITIME AGENCIES PRIVATE LIMITED vs UNION OF INDIA & ORS.
$~33
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 14.03.2024
+ W.P.(C) 3800/2024 & CM. APPLS. 15600-602/2024
SEAGULL MARITIME AGENCIES PRIVATE LIMITED. Petitioner
Versus
UNION OF INDIA & ORS ….. Respondents
Advocates who appeared in this case:
For the Petitioner: Mr. Sandeep Chilana, Mr. Priyojeet Chattarjee, Ms. Anjali Jain, Mr. Vaishnavi Gupta and Ms. Snehil Sharma, Advocates.
For the Respondents: Mr. Pradeep Kumar Jha, SPC with Mr. Karan Wadhwa, Advocate for UOI.
Mr. Atul Tripathi, Senior Standing Counsel with Mr. V.K. Attri, Advocate for CBIC.
CORAM:-
HONBLE MR. JUSTICE SANJEEV SACHDEVA
HON’BLE MR. JUSTICE RAVINDER DUDEJA
JUDGMENT
SANJEEV SACHDEVA, J. (ORAL)
1. Petitioner impugns order dated 04.12.2023, whereby the impugned Show Cause Notices dated 20.09.2023 and 29.09.2023, proposing a demand against the petitioner have been disposed and a demand of Rs. 18,04,132.00 and Rs. 1,43,59,445.00 respectively including penalty has been raised against the petitioner. The order has been passed under Section 73 of the Central Goods and Services Tax Act, 2017 (hereinafter referred to as the Act).
2. As per Petitioner he had closed all business activities during Covid-19 pandemic. However, Petitioner was issued a Show Cause Notice dated 25.08.2020, whereby the Petitioner was called upon to show cause as to why the registration be not cancelled on the ground Any Taxpayer other than composition taxpayer has not filed returns for a continuous period of six months. Pursuant thereto, impugned order of cancellation dated 19.09.2020 had been passed cancelling the GST registration w.e.f. 01.08.2020 i.e., a retrospective date.
3. Learned counsel for the Petitioner submits that Petitioner has no knowledge about the Show Cause Notice dated 20.09.20203 and 29.09.2023, as they were uploaded on the common poral and were not served to the Petitioner on his address or email, and considering that the GST of the Petitioner had been cancelled retrospectively he did not check the said portal.
4. Perusal of the Show Cause Notice dated 20.09.2023 and 29.09.2023 shows that the Department has given separate headings under declaration of output tax, excess claim Input Tax Credit [ITC], under declaration of ineligible ITC and ITC claim from cancelled dealers, return defaulters and tax non-payers.
5. Thereafter two impugned orders dated 04.12.2023, in reference to Show Cause Notice dated 20.09.2023 and 29.09.2023 were issued whereby after recording the narration, both the impugned orders record ex-parte demand is created. Both orders merely state that Now, since no reply / explanation has been received from the taxpayer despite sufficient and repeated opportunities, which indicate that the taxpayer has nothing to say in the matter.
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In view of aforesaid circumstances, the undersigned is left with no other option but to create demand as ex-parte, in accordance with the provisions of CGST / DGST Act & Rules, 2017.
6. As noticed hereinabove, the petitioner was unable to access the Show Cause Notices or reply to the said Show Cause Notices.
7. In view of the above, we are of the view that the impugned orders dated 04.12.2023 which have been passed solely because petitioner had not file a reply cannot be sustained. The matter is liable to be remitted to the Proper Officer for re-adjudication. Accordingly, the impugned orders dated 04.12.2023 are set aside. The matter is remitted to the Proper Officer for re-adjudication.
8. Petitioner shall file reply to the Show Cause Notice within two weeks. Thereafter, the Proper Officer shall re-adjudicate the show cause notice after giving an opportunity of personal hearing and shall pass a fresh speaking order in accordance with law within the period prescribed under Section 75 (3) of the Act.
9. It is clarified that this Court has neither considered nor commented upon the merits of the contentions of either party. All rights and contentions of parties are reserved.
10. The challenge to Notification No. 9 of 2023 with regard to the initial extension of time is left open.
11. Petition is disposed of in the above terms.
SANJEEV SACHDEVA, J
RAVINDER DUDEJA, J
MARCH 14, 2024
NA
W.P.(C) 3800/2024 Page 4 of 4