2. Since both these writ applications are interconnected and common issue is involved, as such both are being heard together and disposed of by this common judgment. W.P.(T) No. 2762 of 2021 is with respect to the Tax period from April 2018 to March 2019 whereas W.P.(T) No. 2798 of 2021 is with respect to the Tax period from July 2017 to March 2018.

3. The writ applications have been preferred by the petitioner for quashing and setting aside show cause notices, both dated 23.07.2020, (Annexure-3 in both applications) issued under section 73(1) and Rule 142(1) of the Jharkhand Goods and Services Taxes, (JGST) Act and also for quashing and setting aside the adjudication orders, both dated 19.10.2020, issued under section 73(9) of the JGST Act and DRC-7, both dated 19.10.2020 (Annexure-4 & 4/1 respectively in both cases).

The petitioner has further prayed for a direction to the respondents for unblocking credit ledger which was blocked on 17.02.2020 and on 18.02.2020 to the tune of Rs. 47,38,408/-; however, during pendency of these applications, the credit ledger has been unblocked though the amount has been realized.

4. The case of the petitioner is that that it is engaged in trading of Railway scraps and is duly registered under the provision of GST Act. An inspection was carried out at the business premises of the petitioner at the instance of administrative direction dated 25.06.2019 issued by JCST based on one intelligence note dated 13.06.2019 alleging therein that the petitioner is engaged in availing ineligible credit of input tax under fake invoices by engaging himself in bill trading/circular trading without physical movement of goods. No inspection report, whatsoever, has ever been served upon the petitioner nor the documents relied upon has ever been supplied to the petitioner. Further, without any information/notice the respondent-Department suo moto blocked the credit ledger account of the petitioner and the petitioner was in receipt of DRC-01A being intimation of liability under section 74 (5) of JGST Act asking him to pay the amount to the tune of Rs. 1,35,40,420.60/- failing which SCN will be issued under section 74(1) of the JGST Act, and if the petitioner wished to file the written submissions, same can be filed by 12.03.2020. Pursuant thereto, the petitioner accordingly filed written submission alongwith all the documentary proof that the transactions have actually taken place and it is not a sham transaction. The respondent although dropped the proceeding under section 74(1) of the JGST Act, however, initiated proceedings under section 73(1) of the JGST Act and straightaway issued show cause notices, without issuing DRC-01A. From perusal of SCN, it is clear that all the submissions and documents produced therein being copy of invoices, e-way bills, measurement slips, proof regarding payment against good transport agency, etc. were duly verified and found genuine.

However, merely for the reason that a proceeding under section 74 of the JGST Act has been initiated against the supplier of the petitioner namely M/s Jai Jawan Khastha Bhandar and M/s Priti Enterprises, liability has been fastened upon the petitioner under section 73(1) of the JGST Act. Petitioner again submitted a detailed reply alongwith the proof of the transactions entered into with its suppliers but without considering the submissions and even without giving the opportunity of hearing to the petitioner, the respondent authority passed the adjudication order under section 73 of the JGST Act merely on the ground as mentioned in the SCN that as the supplier of the petitioner has utilised its ITC in order to discharge its tax liability, there is no actual payment of tax and thus the condition as stipulated under section 16(2)(c) of the JGST Act has not complied with.

5. Learned counsel for the petitioner submits that the main cause of action for initiating proceeding under section 73 of the JGST Act does not survive as this Court in the matter of suppliers of the petitioner being W.P.(T) No. 3153 of 2020 and another analogous matters vide order dated 21.06.2022 has been pleased to set aside the show cause notice, adjudication order and summary of order/demand notice in DRC-07. Although a liberty has been given to the Revenue to initiate fresh proceedings by issuing a proper show cause notice and to take a decision thereupon in accordance with law. She further submits that although such liberty has been given to the Respondent department but the fact remains that at the present there is no proceeding against the suppliers of the petitioner meaning thereby; the main cause for initiating proceeding against the petitioner no longer survives as on date. She contended that merely by keeping the present proceedings pending on the ground that the department might initiate a fresh proceeding against the suppliers of the petitioner is not justified. She further submits that the law casts an obligation upon the parties to serve the documents/inspection report which has been relied upon by either of the parties in a proceedings, however in this case no inspection report has ever been served upon the petitioner and/or no opportunity has been given to cross examine witnesses who has supported the inspection report and intelligence note and the same is in violation of Principles of Natural Justice.

Learned counsel relied upon the decision of the Hon’ble Supreme Court delivered in the case of Ayaaubkhan Noorkhan Pathan Versus State of Maharashtra & Ors., reported in (2013) 4 SCC 465 and submits that in a case where the respondents have relied upon the documents obtained during inspection in the premises of the Assessee on the basis of intelligence note the same should be given to the Assessee to enable them to properly answer to the charges pressed upon. Petitioner being the purchaser has duly discharged its liability and had paid the tax.

It is not the case of respondent department that the petitioner has not discharged its liability under the provisions of GST Act. The intent of the legislation cannot be to punish the dealer acting in a bona fide manner. She further relied upon the judgment passed by this Court in the case of M/S Tarapore Company, Jamshedpur Versus State of Jharkhand & Ors., being W.P.(T) No. 773 of 2018 and submits that in similar facts and circumstances, this Court has been pleased to quash the assessment order in following manner: “we are satisfied due to bona fides on part of the Petitioner, no punitive action was required to be taken, or warranted against the Petitioner. The selling dealer which had defaulted in filing its return or depositing the tax collection from the petitioner in the Government treasury, how the punitive action would be taken against the Petitioner firm, only for the reason that JVAT Act provided for such actions against both the dealers. We are not entering into the question of vires. Certainly any punitive action is warranted only against the defaulting dealers and not against the dealers acting in bona fide manner.”

Learned counsel further submits that Section 76 of the JGST Act deals with the situation wherein the tax is collected by a person but not paid to the Government. Further, Section 76(2) states that the proper officer may serve on the person liable to pay such amount, a notice requiring to show cause as to why the said amount as specified in the notice, should not be paid by him to the Government and why a penalty equivalent to the amount specified in the notice should not be imposed on him. Thus, section 76 casts a duty upon the respondent department to initiate a proceeding against the person who has collected the tax but not paid the same to the Government exchequer and not against the bona fide person. She contended that twice the amount cannot be recovered on the same transaction and if a proceeding has already been initiated against the defaulting dealers and if they are found defaulters, recovery proceedings can be initiated against them and tax along with interests and penalty be recovered from them and the petitioner cannot be charged against the same transactions.

6. Learned counsel for the respondents submits that the Ministry of Finance, Department of Revenue, Central Board of Indirect Taxes and Customs GST-Investigation Wings, Government of India, referring to GST Council Letter No. F No. 96/GCG-offence case date/GSTC/2019 dated 18.03.2019 issued ‘Standard Operating Procedure’ (SOP) vide office memorandum dated 12.05.2019. This memorandum was issued to curb the wrong availment/Forward Transaction of Input Tax Credit (hereinafter ITC) by the registered person under the Goods and Services Tax Act, 2017.

Learned counsel further submits that the State Taxes Department, Government of Jharkhand while scrutinizing the registered persons/dealers as directed by the State Taxes Department HQ, it was detected that many tax payers under GST are though physically nonexistent but had filed GSTR-1 and allowed the other dealers to utilize the said ITC. The Head Quarter accordingly vide letter Va.Kr./GST Int. cell/122/2019-2247 dated 25.06.2019 sent the Intelligence Note No. 30 dated 13.06.2019 to the concerned field office. He further submits that based upon the aforesaid Intelligence Note No. 80 dated 13.06.2019, the State Taxes Joint commissioner, Dhanbad Division, Dhanbad directed the concerned officials to proceed and investigate in accordance with law.

During investigation of the business premise of the petitioner, no material whatsoever was found available, even though as per the registration certificate of the petitioner under GST it was shown as dealer of Iron, Iron scrap etc. On demand of the records/documents related to the business carried out by the representative of the petitioner, only few documents i.e. few invoices and eway bills were produced.

He further submits that through the said inspection report dated 11.07.2019 the petitioner was directed to produce all the requisite records on 17.07.2019; however, he did not turn up on 17.07.2019 before the authority. As such, summon (reference no. 4129 dated 24.01.2020) under Section 70 of the GST was issued to the petitioner. The proprietor appeared on the date fixed and requested for some time to produce the documents. The time was granted and the petitioner was directed to produce the documents by 04.02.2020. The proprietor of the petitioner produced the invoice related to inward/outward supplies, related Eway bills, few slip of weighing bridge and pages of the ledger accounts. During scrutiny of the documents/registers produced on behalf of the petitioner, it was found that the petitioner had grossly violated section 35 of the JGST Act read with Rule 56 of JGST Rule.

On the basis of facts determined as per Intelligence notes no. 80 dated 13.06.2019, inspection report dated 11.07.2019 and after scrutinizing the documents/register produced by the petitioner, intimation under Section 74(5) of the JGST Act, 2017 was issued vide order dated 25.02.2020; however, despite the above intimation, the petitioner did not pay the tax liability as determined. As such a detailed show cause notice dated 23.07.2020 was issued to the petitioner under Section 73(1) of the GST Act and Rule 142(1) of the GST Rules and after giving due opportunity to the petitioner, an order under Section 73(9) of the JGST Act was passed and issued on 19.10.2020 for financial year 2017-18 & 2018-19 wherein it was categorically indicated that the petitioner had availed the ITC passed by the dealers (M/s. Jai Jawan Kastha Bhandar, M/s. Priti Enterprises) involved in fraudulent passing of ITC. It was found that the ITC so forwarded by the dealers (M/s. Jai Jawan Kastha Bhandar, M/s. Priti Enterpirses) to the petitioner had not actually paid tax to the Government and had shown its tax liability paid to the Government by availing the fraudulent ITC as available in ITC ledger.

7. Having heard learned counsel for the parties and after going through the documents available on record, it appears that an inspection was carried out at the business premises of the petitioner at the instance of administrative direction dated 25.06.2019 issued by JCST based on one intelligence note dated 13.06.2019 alleging therein that the petitioner is engaged in availing ineligible credit of input tax under fake invoices by engaging himself in bill trading/circular trading without physical movement of goods. Thereafter, the Respondent department also blocked the credit ledger account of the petitioner and the petitioner was in receipt of DRC-01A being intimation of liability under section 74(5) of JGST Act asking him to pay the amount to the tune of Rs. 1,35,40,420.60/- failing which SCN will be issued under section 74(1) of the JGST Act. The petitioner duly filed written submission along with all the documentary proof that the transactions have actually taken place and it is not a sham transaction. however, during pendency of these applications, the credit ledger has been unblocked though the amount has been realized.

The respondent although dropped the proceeding under section 74(1) of the JGST Act, however, initiated proceedings under section 73(1) of the JGST Act and straightaway issued show cause notices, without issuing DRC-01A under Section 73(5) of the Act.

8. At this stage, it pertinent to mention here that the respondent-Department has duly accepted all the contentions of the petitioner and also the documents produced by him being copy of invoices, e-way bills, measurement slips, proof regarding payment against good transport agency, etc. and after verification and re-verification found them to be genuine. However, merely for the reason that the Assessee had entered into certain transactions with some of those companies especially M/s Jai Jawan Kastha Bhandar and M/s. Priti Enterprises, upon whom proceedings has been initiated under Section 74 of the Act for passing on input tax credit through fraudulent method, the claim of Input Tax credit of the petitioner has been rejected and accordingly the petitioner have been asked for reversal of the same along with interest and penalty.

For ready reference relevant part of the impugned order is quoted hereinbelow:-

9. After going through paragraphs 5 and 6 of the impugned adjudication order dated 19.10.2020 it clearly transpires that the respondent No.4 at paragraph 5 & 6 of its order had admitted that upon re-verification, it was found that e-way bills and computer generated measurement slip are true and genuine documents and the petitioner in the past has duly discharged its liability towards any mismatch in ITC.

10. At this stage it is relevant to mention here that the said M/s. Jai Jawan Kastha Bhandar and M/s. Priti Enterprises with whom it was alleged that the petitioner was having transactions had filed writ application before this Court being W.P.(T) No. 3153 of 2020, 154 of 2020 and 3179 of 2020 (M/s. Jai Jawan Kastha Bhandar) for three respective assessments years and W.P.(T) No. 3210 of 2010 and 3211 of 2020 (M/s. Priti Enterprises Vs. The State of Jharkhand and Ors.) for the respective two assessment years and those writ applications were partly allowed by this court and the respective impugned show cause notices, the adjudication orders and the summary of the order/demand notices in DRC-07 in the case of those petitioners were set aside and the matter was remitted back to the concerned authority/adjudicating officer to proceed with the matter in accordance with law vide order dated 21.06.2021.

11. In view of the aforesaid facts and circumstances when the respondent-Department has duly accepted all the contentions of the petitioner and found the e-way bills and computer generated measurement slip to be correct and genuine documents and the sole reason for initiating the proceedings against this petitioner and passing of the impugned adjudication orders was due to his transaction with M/s Jai Jawan Kastha Bhandar and M/s. Priti Enterprises and when the cases of those assesses have been remanded to the adjudicating authority to pass fresh order in accordance with law; interest of justice demands that the case of this petitioner should also be remitted back to the adjudicating authority, inasmuch as, the sole cause of action does not survives.

12. Consequently, show cause notices, both dated 23.07.2020, (Annexure-3 in both applications) issued under section 73(1) and Rule 142(1) of the Jharkhand Goods and Services Taxes, (JGST) Act and also the adjudication orders, both dated 19.10.2020, issued under section 73(9) of the JGST Act and DRC-07, both dated 19.10.2020 (Annexure-4 & 4/1 respectively in both cases); are hereby quashed and set-aside.

13. It is made clear that we have not gone into the merits of the case, however, the respondents are directed to proceed in the matter from the stage of show cause notice after following principle of natural justice keeping in mind the ratio decided in the case of M/s. Tarapore & Company, Jamshedpur Versus The State of Jharkhand being W.P.(T) No. 773 of 2018 and also in the case of D.Y.Beathel Enterprises Versus State Tax Officer (Data Cell), Tirunelveli, reported in [2021] 127 taxmann.com 80 (Madras).

14. With the aforesaid directions, both these writ applications stand disposed of.