WP(C)/2274/2025 of MS GANAPATI ENTERPRISE AND ANR Vs THE STATE OF ASSAM AND ORS on 1 September 2026

ORDER

02-09-2026

1. Heard Mr. S.K. Saha, learned counsel for the petitioners, and Mr. B. Choudhury, learned Standing counsel, Finance and Taxation Department for the respondents.

2. The petitioners have challenged the Order dated 15.12.2023, passed under Section 73 of the Assam Goods and Services Tax (AGST, in short) Act, 2017, whereby a demand of Rs. 11,39,559.70/-, comprising tax, interest and penalty, has been raised for the Financial Year 2017-2018, along with the consequential Summary of the order in FORM GST DRC-07.

3. The principal contention of the petitioners is that although a Summary of Show Cause Notice in the FORM GST DRC-01 dated 30.09.2023 was uploaded, no independent Show Cause Notice in the FORM GST DRC-01 dated 30.09.2023 was uploaded and no independent Show Cause Notice contemplated under Section 73(1) of the AGST Act, 2017 was issued.

4. It is further contended that the documents relied upon by the respondents were not duly authenticated and that no opportunity of hearing was afforded to the petitioners before passing the impugned order.

5. A similar issue raised in the present writ petition was dealt with by a Co- ordinate Bench in Construction Catalyzers Pvt. Ltd. Vs. The State of Assam and Ors. [WP(C) No. 3912/2024 & other connected writ petitions] was decided on 26.09.2024.

In these cases, the concerned Department had issued a Summary of Show Cause Notice in the FORM GST DRC-01 accompanied by an attachment containing the determination of Tax, but there was no separate statutory Show Cause Notice under Section 73(1). The Co-ordinate Bench held that the Summary of Show Cause Notice in the FORM GST DRC-01 and the attachment thereto cannot substitute the statutory Show Cause Notice required under Section 73(1). The Co-ordinate Bench also held that the requirement of an opportunity of hearing under Section 75(4) would not be dispensed with where an advanced decision was contemplated.

6. In the present case, the materials placed before this Court also do not disclose the issuance of a separate and duly authenticated Show Cause Notice under Section 73(1).

7. The Summary of Show Cause Notice dated 30.09.2023, issued by the Assistant Commissioner of State Tax, is merely a summary uploaded in FORM GST DRC-01, and the subsequent Order under Section 73 dated 15.12.2023 was therefore passed without completing the statutory requirements contemplated under Section 73(1).

8. The petitioners have relied on the subsequent insertion of Section 16(5) of the Central Goods and Services Tax (CGST) Act, 2017, having retrospective effect, in support of their claim for input tax credit for the Financial Year 2017- 2018.

9. The effect of the aforesaid provision, including whether the petitioners satisfied the conditions prescribed therein, has not been examined by the adjudicating authority, inasmuch as the petitioners did not have the opportunity to raise that issue during the adjudicatory proceeding initiated under Section

73.

10. Accordingly, for the reasons recorded hereinabove, the impugned Order under Section 73 dated 15.12.2023 and the consequential Form GST DRC-07 dated 15.12.2023 are hereby set aside and quashed, and for the interest of justice, the clock is put back to the date of the summary of the Notice with further direction to the authority to proceed by issuing a proper Show Cause Notice and determine the demand as per law and in terms of Sections 71 and 75 of the Act.

11. With the aforesaid, the instant writ petition stands disposed of.

12. The interim order passed earlier is hereby vacated.

JUDGE Comparing Assistant