2023 (7) TMI 1011 - HC - GST

GST show cause notice under Section 74(1) for bogus input tax credit claims upheld despite vagueness concerns

M/s Abhay Traders Versus Commissioner Commercial Tax U.P. Lucknow And Another

The Allahabad HC dismissed a writ petition challenging a show cause notice under Section 74(1) of the GST Act, 2017 for wrongful input tax credit claims ... Wrongful claim of Input tax credit - bogus supply - vague SCN - SCN did contain the details about the foundation of the case - principles of natural justice - HELD THAT:- It would be proper for this Court to consider the issue of whether the impugned notice can be challenged by way of this writ petition, though remedy of filing reply is available. The issue regarding the proper show cause notice was considered by the Apex Court in the cases of GORKHA SECURITY SERVICES VERSUS GOVT. OF NCT OF DELHI & ORS. [2014 (8) TMI 1081 - SUPREME COURT], METAL FORGINGS VERSUS UNION OF INDIA [2002 (11) TMI 90 - SUPREME COURT] as well as in the case of CCE VERSUS SHITAL INTERNATIONAL [2010 (10) TMI 19 - SUPREME COURT] - In the judgement mentioned, Apex Court observed that it is trite law that unless the foundation of the case is laid in the show cause notice, the same cannot be treated as proper show cause notice and notice issued in a format without even striking out any relevant portion and without stating clear contraventions committed by the petitioner, will not substitute the requirement of proper show cause notice. Hon'ble Apex Court in DILIP N. SHROFF VERSUS JOINT COMMISSIONER OF INCOME-TAX AND ANOTHER [2007 (5) TMI 198 - SUPREME COURT], has also observed that expression in Section 73/74 of the Act, 2017 'appears to be proper officer' is not to a casual act but should show the full application of mind by proper officer. From the perusal of the impugned notice, it is clear that it contains necessary details and grounds, which are the basis for issuing the same. Still, at the tail end of the impugned notice, instead of seeking a reply on the allegation mentioned in the impugned show cause notice issued under Section 74 (1) of the Act, 2017, petitioner was directed to reply with regard to the tax and penalty and it was stated that if no reply was furnished then order under Section 74(9) of the Act, 2017 would be passed. Therefore, the impugned notice because of the facts mentioned in the earlier part of the notice cannot be said to be patently illegal, being without jurisdiction. Therefore, there is no ground for quashing the same under Article 226 of the Constitution of India. The petitioner should be relegated to the remedy of filing a reply to the impugned show cause notice. Because the notice did contain the details about the foundation of the case, i.e. that there was no actual supply of goods on 12 June, 2018 by M/s Raghav Enterprises to petitioner, the show cause notice is not quashed instead the petitioner is permitted to also reply with regard to the fact that goods were in fact supplied to the petitioner from M/s Raghav Enterprises. Petition disposed off. Issues involved:The controversy in the present writ petition is regarding a notice served to the petitioner for the Assessment Year 2018-19, questioning the actual supply of goods from a purportedly bogus firm, and the subsequent imposition of tax, penalty, and interest based on the alleged wrongful claim of Input Tax Credit.Controversy Regarding Notice:The petitioner challenged the notice as vague and argued that the conclusion of no goods supplied was incorrect, emphasizing the need for a proper opportunity to respond. The petitioner relied on a judgment from the High Court of Jharkhand to support their argument.Legal Interpretation of Section 74:Respondents cited Section 74(1) of the Uttar Pradesh Goods and Services Tax Act, 2017, stating that proceedings could be initiated if it 'appeared' that Input Tax Credit had been wrongly availed. They argued that the notice was valid and the petitioner could respond at the appropriate stage, citing a Gujarat High Court judgment.Analysis of Show Cause Notice:The Court considered the adequacy of the impugned notice in light of principles of natural justice, quoting previous judgments to emphasize the need for clear imputations and proposed actions in such notices. It was noted that the notice should provide the opportunity for the respondent to rebut the charges and establish innocence.Court's Decision and Order:The Court observed that the impugned notice contained necessary details and grounds but directed the petitioner to reply regarding tax and penalty, rather than the specific allegations. The Court decided not to quash the notice but allowed the petitioner to respond, specifically addressing the claim of goods supplied by the alleged bogus firm.Final Disposition and Directions:The writ petition was disposed of, granting the petitioner one month to file a reply to the notice, including relevant material. The petitioner was permitted to explain the actual supply of goods and challenge the taxation, penalty, and interest charges. The report of the Special Investigation Branch was deemed non-final, subject to the Assessing Authority's decision after considering the petitioner's response and evidence submitted.