TaxTMI 
TaxTMI 
2022 (3) TMI 1370
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....arch, 2018) was assigned to the Officer of Central Tax (hereinafter referred to as 'the Central Officer') but the show cause notice dated 25.6.2021 for assessment under section 73 of CGST Act/UPGST Act was issued by the Officer of the State Tax (hereinafter referred to as 'the State Officer') i.e. Dy. Commissioner, Commercial Tax Saharanpur, Sector 10, Saharanpur (B), Uttar Pradesh. The petitioner submitted reply to the show cause notice but did not raise any objection as to the jurisdiction on the ground of assignment of the case to Central Officer. The proper officer under the Act completed the assessment proceedings and passed the assessment order under section 73 of the UPGST Act/CGST Act dated 9.8.2021 for the tax period July, 2017 to March, 2018. Aggrieved the aforesaid assessment order dated 9.8.2021 the petitioner has filed the present writ petition praying to quash the show cause notice (DRC-01) dated 25.6.2021 issued by the State Officer i.e. the respondent no. 4 and the assessment order dated 9.8.2021 passed by the respondent no. 4. SUBMISSIONS ON BEHALF OF THE PETITIONER 3. (i) Learned counsel for the petitioner submits that the impugned show cause not....
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....dice to the provisions of this Act, the officers appointed under the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act are authorised to be the proper officers for the purposes of this Act, subject to such conditions as the Government shall, on the recommendations of the Council, by notification, specify. (2) Subject to the conditions specified in the notification issued under sub-section (1),-- (a) where any proper officer issues an order under this Act, he shall also issue an order under the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act, as authorised by the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act, as the case may be, under intimation to the jurisdictional officer of State tax or Union territory tax; (b) where a proper officer under the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act has initiated any proceedings on a subject matter, no proceedings shall be initiated by the proper officer under this Act on the same subject matter. (3) Any proceedings for rectification, appeal and revision, wherever applicable, of any order passed ....
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....ysical presence in the taxable territory, any person representing such electronic commerce operator for any purpose in the taxable territory shall be liable to pay tax: PROVIDED FURTHER that where an electronic commerce operator does not have a physical presence in the taxable territory and also he does not have a representative in the said territory, such electronic commerce operator shall appoint a person in the taxable territory for the purpose of paying tax and such person shall be liable to pay tax. 6 Authorisation of officers of Central Tax as proper Officer in certain circumstances (1) Without prejudice to the provisions of this Act, 2017 the officers appointed under the Central Goods and Services Tax Act, are authorised to be the proper officers for the purposes of this Act, subject to such conditions as the Government shall, on the recommendations of the Council, by notification, specify. (2) Subject to the conditions specified in the notification issued under sub - section (1),- (a) where any proper officer issues an order under this Act, he shall also issue an order under the Central Goods and Services Tax Act 2017, as authorised by the said Act under intimation to ....
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....l be paid by the electronic commerce operator if such services are supplied through it, and all the provisions of this Act shall apply to such electronic commerce operator as if he is the supplier liable for paying the tax in relation to the supply of such services: Provided that where an electronic commerce operator does not have a physical presence in the taxable territory, any person representing such electronic commerce operator for any purpose in the taxable territory shall be liable to pay tax: Provided further that where an electronic commerce operator does not have a physical presence in the taxable territory and also he does not have a representative in the said territory, such electronic commerce operator shall appoint a person in the taxable territory for the purpose of paying tax and such person shall be liable to pay tax. 6. The "Goods and Service Tax Council" (for short GST Council) took a decision vide minutes of the IX GST Council meeting held on 16.1.2017 (Agenda item no. 28) in respect of cross empowerment to ensure single interface under the GST Act, as under: "28. After further discussion, the Council agreed to the decisions as recorded below in respect of ....
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....e territory of the Union of India unless the Hon'ble Supreme Court decides otherwise in the ongoing litigation on the issue but the power to collect the State tax in the territorial waters shall be delegated by the Central Government to the States." 7. Pursuant to the aforesaid decision of the GST Council, a circular no. 01/2017 dated 20.9.2017 (F no. 166/cross empowerment/GST/2017) was issued by the GST Council, New Delhi providing that the State Level Committee comprising Chief Commissioner/Commissioner Commercial Taxes of respective States and jurisdictional Central Tax Chief Commissioners/Commissioners are already in place for effective coordination between the Centre and State and the said Committee may take necessary steps for division of taxpayers in each State. 8. Pursuant to the aforesaid circular the Committee constituted for the State of Uttar Pradesh passed order No. 04/2018 dated 12.9.2018 assigning the taxpayers registered in the State of U.P. in terms of the aforequoted decision of the GST Council. 9. It is admitted fact that the taxpayer i.e. the petitioner has been assigned to the Central Officer whereas the impugned show cause notice was issued by the State Off....
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....es Tax Act, 2017 as authorized by the said Act under intimation to the jurisdictional officer of central tax. Clause (b) of sub-Section (2) of Section 6 of the UPGST Act provides that where a proper officer under the CGST Act has initiated any proceeding on a subject matter, no proceeding shall be initiated by the proper officer under the UPGST Act on the same subject matter. 12. From bare perusal of Section 6 of the CGST Act and the UPGST Act it is clear that a proper officer under the UPGST Act is also a proper officer under the CGST Act within his territorial jurisdiction. Likewise a proper officer appointed under the CGST Act is also the proper officer under the UPGST Act within his territorial jurisdiction. So as to avoid possibility of conflicting orders, an in built provision in both the CGST Act and UPGST Act has been made in Section 6 that when a proper officer under the CGST Act passes an order, he shall intimate it to the jurisdictional officer under the State Act or the Union territory Act and likewise when a proper officer under the UPGST Act passes an order, he shall intimate it to the jurisdictional officer of Central Tax. Thus a cross empowerment with sufficient pr....
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....er and issued the impugned show cause notice dated 25.6.2021 which was replied by the petitioner without raising any objection as to jurisdiction on account of assignment of case to the Central Officer. It was also not brought to the notice of the respondent no. 4 by the petitioner that his case is assigned to a Central Officer. Instead, the petitioner participated in the assessment proceeding and the assessing officer i.e. the proper officer (respondent No.4) has passed the impugned assessment order dated 9.8.2021, which can be said to be contributory error of jurisdiction. The GST Act came into force from 01.07.2017. Prior to it the petitioner was registered under the U.P. VAT Act and was carrying on business in partnership. But he migrated as proprietary concern under the GST Act and carried the entire stock of the partnership firm as on 30.06.2017 to the proprietary concern. Neither on issuance of notice nor during the course of assessment proceedings, did the petitioner inform the respondent No.4 that his case was assigned to a Central Officer. After the assessment order dated 09.08.2021 was passed by the respondent No.4, it came to notice that the case was assigned to a Centr....
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....of jurisdiction on account of non allotment of case of the petitioner assessee to the respondent no. 4/State officer. 21. In the case of Municipal Commissioner, Kolkata and others Vs. Salil Kumar Banerji (2000) 4 SCC 108 (para 4), Hon'ble Supreme Court considered the validity of an order passed by a Tribunal not properly constituted. Hon'ble Supreme Court held that "...Even assuming that it ought to have consisted of three or more Members, had that objection been taken at the initial stage of the hearing of the appeal before the Tribunal, that position could have been rectified. Certainly, in circumstances such as these, the High Court ought not to have exercised its discretion in favour of the first respondent." 22. In the case of Kedar Shashikant Deshpandey and others Vs. Bhor Municipal Council and others (2011) 2 SCC 654 (para 29) Hon'ble Supreme Court considered the principle "submitting to the jurisdiction of the authority" and held that "it is well settled that if a person has submitted to the jurisdiction of the authority, he cannot challenge the proceedings on the ground of lack of jurisdiction of the said authority in further appellate proceedings...." 23. I....
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.... Hon'ble Supreme Court considered the submission that in the event the respondent succeeded in getting the order of punishment quashed on a mere technicality and that too on the contention belatedly raised before the High Court for the first time and, therefore, the High Court was in error in directing payment of all consequential benefits.; and held as under: "We think there is merit in this contention. If the objection was raised at the earliest possible opportunity before the Enquiry Officer the appellant could have taken steps to remedy the situation by appointing a competent officer to enquire into the charges before the respondent's retirement from service......." 26. In the case of Nusli Neville Wadia Vs. Ivory Properties and others (2020) 6 SCC 557 (paras 20, 21 and 22) Hon'ble Supreme Court has explained the meaning of the word "jurisdiction" and distinction between jurisdiction to entertain and error of exercise of jurisdiction or excess jurisdiction and held as under : "20. Jurisdiction is the power to decide and not merely the power to decide correctly. Jurisdiction is the authority of law to act officially. It is an authority of law to act officially i....
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.... error in the exercise of jurisdiction or excess of jurisdiction." 27. In the case of Nusli (supra) vide paragraph 37 Hon'ble Supreme Court explained the difference between "existence of jurisdiction" and "exercise of jurisdiction" and held as under : "37. There is a difference between the existence of jurisdiction and the exercise of jurisdiction. In case jurisdiction is exercised with material irregularity or with illegality, it would also constitute jurisdictional error. However, if a court has jurisdiction to entertain a suit but in exercise of jurisdiction, a mistake has been committed, though it would be a jurisdictional error but not lack of it. It may be a jurisdictional error open for interference in appellate or revisional jurisdiction." 28. In the case of Hridya Narain Roy Vs. Ram Chandra Barna Sarma AIR 1921 Cal 34 (FB) quoted with approval by Hon'ble Supreme Court in the case of Official Trustee Vs. Sachindra Nath Chatterjee AIR 1969 SC 823 and Nusli (supra), it was stated that: "jurisdiction may be defined to be the power of a court to "hear and determine a cause, to adjudicate and exercise any judicial power in relation to it:" in other words, by jurisd....