TaxTMI 
TaxTMI 
2022 (8) TMI 753
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.... DRC-01 prescribed under Rule 142(1) indicating demand to the tune of Rs.2,88,706/- comprising Tax of Rs.1,34,318/- + Interest of Rs.20,070/- + penalty of Rs.1,34,318/- pertaining to tax periods from 01.04.2020 to 31.03.2021 [Financial Year 2020-21] inter alia on the following fact and grounds: "*** 1.3. That upon examination of the registration data pool available with the GSTN, it is found that the noticee has failed to register itself, though liable to be registered under Section 24(iii) of the Act and also failed to discharge its obligations to pay tax, by way of filing of returns in GSTR-1 and GSTR-3B in accordance with the provisions under Sections 37 and 39 of the Act. *** 2.1. That the leased rights enjoyed by the noticee for mining and quarrying activities of 'sand', has been granted by the Government for which it pays 'royalty' to the lessor, i.e., the Government in this case. 2.2. That those leased rights, i.e., Licensing Services for right to use of minerals (in this case SAND) including its exploitation and evaluation is covered under HSN Code 997337 and attracts 18% GST under Sl. No.17(viii) of the Notification No.11/2017-C....
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.... "2. Before concluding, we may clarify that normally the Bench of five learned Judges in case of doubt has to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger coram than the Bench whose decision has come up for consideration (see Central Board of Dawoodi Bohra Community Vrs. State of Maharashtra [(2005) 2 SCC 673 : 2005 SCC (L&S) 246 : 2005 SCC (Cri) 546]). However, in the present case, since prima facie there appears to be some conflict between the decision of this Court in State of W.B. Vrs. Kesoram Industries Ltd. [(2004) 10 SCC 201] which decision has been delivered by a Bench of five Judges of this Court and the decision delivered by a seven-Judge Bench of this Court in India Cement Ltd. Vrs. State of T.N. [(1990) 1 SCC 12], reference to the Bench of nine-Judges is requested. The office is directed to place the matter on the administrative side before the Chief Justice for appropriate orders. 3.2. Sri Satapathy, therefore, argued that in view of interim order of stay of payment of service tax under Chapter-V of the Finance Act, 1994 for grant of mining lease/royalty being granted by the Hon'ble Supreme C....
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....ned shall be constrained to pass an order in Form GST ASMT-15 and demand/recover the tax along with interest and penalty on the basis of information available with the department, without any further reference to you in this regard." 4.1. The petitioner is supposed to respond to said Demand-cum-Show Cause Notice and participate in the proceeding under Section 63 of the OGST/CGST Act to avail the opportunity of being heard and place relevant material to facilitate adjudication of the issue raised and/or proposition made by the Joint Commissioner of State Tax, CT&GST Circle, Jajpur-Proper Officer. As it would be unwarranted for this Court to have indulgence in the matter of calling for reply to show cause, entertainment of the writ petition, at this stage, would be premature. 5. Before proceeding to consider the rival contentions, it is apt to notice that the petitioner has remained unregistered person carrying on her business. Reading of provision contained in Section 63 clearly establishes that the proceeding under said provision is initiated by the proper officer to assess the tax liability of taxable person: i. who failed to obtain registration even though liable t....
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....ore this Court." 5.5. This Court is not inclined to accede to the prayer of the counsel for the petitioner to grant stay of proceeding under Section 63 of the CGST/OGST Act in terms of Order dated 18.01.2018 [Udaipur Chambers of Commerce and Industry & Ors. Vrs. Union of India & Ors., Petition(s) for Special Leave to Appeal (C) No(s). 37326/2017 (Arising out of impugned final judgment and order dated 24-10-2017 in DBCWP No. 14578/2016 passed by the High Court of Judicature for Rajasthan at Jodhpur)] in view of subsequent interim Orders being passed by said Hon'ble Supreme Court in the cases tagged to SLP(C) No 37326 of 2017. 5.6. It may not be out of place to refer to the Order dated 20th April, 2022 passed in the case of Mandhan Minerals Corporation Vrs. Union of India, W.P.(T) No. 432 of 2021 & batch of matters pending adjudication before the Hon'ble High Court of Jharkhand at Ranchi which has been pressed into service by the counsel for the petitioner for the purpose of restraining the Proper Officer from finalizing assessment. Minute reading of said Order would reveal the following: "9. Following the interim order passed by the Apex Court in the case of M/s Lakhw....
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.... Furthermore, it transpires from the interim Order dated 20th April, 2022 of the Jharkhand High Court passed in the case of Mandhan Minerals Corporation Vrs. Union of India, W.P.(T) No. 432 of 2021 & batch of matters that the interim order dated 28.02.2022 passed by the Hon'ble Supreme Court in the cases of MW Mines Private Limited Vrs. Union of India & Anr., Special Leave Petition (Civil) Diary No(s).4399/2022 and interim order dated 31.08.2021 in M/s. Mateshwari Minerals & Anr. Vrs. Union of India & Anr., Petition(s) for Special Leave to Appeal (C) No(s).13066/2021 subsequent to passing of interim Order dated 11.01.2018 in Udaipur Chambers of Commerce and Industry & Ors. Vrs. Union of India & Ors., Petition(s) for Special Leave to Appeal (C) No(s). 37326/2017 and interim Order dated 05.02.2018 passed in Tamanna Begum, etc. etc. Vrs. Union of India & Anr., Petition(s) for Special Leave to Appeal (C) Nos. 3150-3155/2018 were not brought to its notice. 5.9. Mr. Tushar Kanti Satapathy, counsel for the petitioner urged that the Hon'ble High Court of Andhra Pradesh at Amaravati in the case of Karthika Mines and Minerals Private Limited Vrs. The Assistant Commissioner (ST) and Ors., ....
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....decide the last submission of learned counsel that this court, while interpreting an all-India statute like the Income-tax Act, is bound to follow the decision of any other High Court and to decide accordingly even if its own view is contrary thereto, in view of the practice followed by this court in such matters. Because, if we are to accept this submission, it will be an exercise in futility to examine the real controversy before us with a view to decide the issue, as in that case in view of the Calcutta decision whatever may be our decision on the question of law referred to us, we would be bound to follow the decision of the Calcutta High Court and answer the question accordingly. This submission, in our opinion, is not tenable as it goes counter not only to the powers of this court to hear the reference and decide the questions of law raised therein and to deliver its judgment thereon but also to the doctrine of binding precedent known as stare decisis. We shall deal with the reasons for the same at some length a little later. *** 20. From the foregoing discussion, the following propositions emerge: (a) The law declared by the Supreme Court being bin....
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....f stare decisis, can judgments of one High Court be given the status of a binding precedent so far as other High Courts or Courts or Tribunals within their territorial jurisdiction are concerned. Any such attempt will go counter to the very doctrine of stare decisis and also the various decisions of the Supreme Court which have interpreted the scope and ambit thereof. The fact that there is only one decision of any one High Court on a particular point or that a number of different High Courts have taken identical views in that regard is not at all relevant for that purpose. Whatever may be the conclusion, the decisions cannot have the force of binding precedent on other High Courts or on any subordinate courts or Tribunals within their jurisdiction. That status is reserved only for the decisions of the Supreme Court which are binding on all courts in the country by virtue of article 141 of the Constitution." 5.12. Following principles discussed in Commissioner of Income Tax Vrs. Thana Electricity Supply Ltd., (1994) 206 ITR 727 (Bom) and Consolidated Pneumatic Tool Co. (India) Ltd. Vrs. Commissioner of Income Tax, (1994) 209 ITR 277 (Bom), in Geoffrey Manners & Co. Ltd. Vrs. Com....
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....o the Tribunal declaring the provision to be ultra vires the Constitution for the purpose of assessments lying within the jurisdiction of the authorities situated within the territory of the Delhi High Court. This is precisely not permissible. 5.15. As regards binding effect of interim orders are concerned, the Hon'ble Supreme Court of India in the case of Empire Industries Ltd. Vrs. Union of India, (1985) 3 SCC 314 = 1985 SCC (Tax) 416 succinctly laid down as follows: "59. Good deal of arguments were canvassed before us for variation or vacation of the interim orders passed in these cases. Different courts sometimes pass different interim orders as the courts think fit. It is a matter of common knowledge that the interim orders passed by particular courts on certain considerations are not precedents for other cases which may be on similar facts. An argument is being built up nowadays that once an interim order has been passed by this Court on certain factors specially in fiscal matters, in subsequent matters on more or less similar facts, there should not be a different order passed nor should there be any variation with that kind of interim order passed. It is submitt....
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....on of India, W.P.(T) No. 432 of 2021 & batch of matters wherein Order dated 02.03.2021 passed in the case of Sunita Ganguly & Ors. Vrs. Union of India & Ors., W.P.(T) No. 3878 of 2020 has been referred to by the Hon'ble High Court of Jharkhand at Ranchi it is manifest that said Court neither placed any restriction nor did it restrain assessment proceeding to be continued and completed. 5.18. In view of above discussions the petitioner has failed to persuade this Court to maintain parity having regard to consistency in approach by passing interim order(s) as that are passed by different High Courts. Needless to make an observation that assessment proceeding commenced by issue of notice is required to be culminated in passing of final adjudication order within the period stipulated under the statute. Hence, this Court is not inclined to grant stay of proceeding initiated by issue of Demand-cum- Show Cause Notice under Section 63 of the CGST/OGST Act regard being had to the fact of non-registration of the petitioner who deals in sand (mineral) being allotted with lease of quarry at Mukundapur Baitarani River Sand Quarry vide Sairat Lease Case No.03/2015-16, in terms of the Odisha M....
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..... Vrs. Gujarat Ambuja Cement Ltd. [(2005) 6 SCC 499]. 11. Except for a period when Article 226 was amended by the Constitution (Forty-second Amendment) Act, 1976, the power relating to alternative remedy has been considered to be a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of an alternative remedy it is within the jurisdiction or discretion of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally the High Court should not interfere if there is an adequate efficacious alternative remedy. If somebody approaches the High Court without availing the alternative remedy provided, the High Court should ensure that he has made out a strong case or that there exist good grounds to invoke the extraordinary jurisdiction. 12. Constitution Benches of this Court in K.S. Rashid and Son Vrs. Income Tax Investigation Commission [1954 SCR 738 = AIR 1954 SC 207], Sangram Singh Vrs. Election Tribunal, Kotah [....
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....n and not one of compulsion and the court must consider the pros and cons of the case and then may interfere if it comes to the conclusion that the Petitioner seeks enforcement of any of the fundamental rights; where there is failure of principles of natural justice or where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. 15. In Veerappa Pillai Vrs. Raman & Raman Ltd. [1952 SCR 583 = AIR 1952 SC 192], CCE Vrs. Dunlop India Ltd. [(1985) 1 SCC 260 = 1985 SCC (Tax) 75 = AIR 1985 SC 330], Ramendra Kishore Biswas Vrs. State of Tripura [(1999) 1 SCC 472 = 1999 SCC (L&S) 295 = AIR 1999 SC 294], Shivgonda Anna Patil Vrs. State of Maharashtra [(1999) 3 SCC 5 = AIR 1999 SC 2281], C.A. Abraham Vrs. ITO [(1961) 2 SCR 765 = AIR 1961 SC 609], Titaghur Paper Mills Co. Ltd. Vrs. State of Orissa [(1983) 2 SCC 433 = 1983 SCC (Tax) 131 = AIR 1983 SC 603], H.B. Gandhi Vrs. Gopi Nath & Sons [1992 Supp (2) SCC 312], Whirlpool Corporation Vrs. Registrar of Trade Marks [(1998) 8 SCC 1 = AIR 1999 SC 22], Tin Plate Co. of India Ltd. Vrs. State of Bihar [(1998) 8 SCC 272 = AIR 1999 SC 74], Sheela Devi Vrs. Jaspal Singh [(1999) 1 SCC 209] and Punjab Nat....
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....ve an adequate or suitable relief elsewhere, it can refuse to exercise its jurisdiction. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of the principles of natural justice or the procedure required for decision has not been adopted. [See N.T. Veluswami Thevar Vrs. G. Raja Nainar [AIR 1959 SC 422], MunicipalCouncil, Khurai Vrs. Kamal Kumar [AIR 1965 SC 1321 = (1965) 2 SCR 653], Siliguri Municipality Vrs. Amalendu Das [(1984) 2 SCC 436 = 1984 SCC (Tax) 133], S.T. Muthusami Vrs. K. Natarajan [(1988) 1 SCC 572], Rajasthan SRTC Vrs. Krishna Kant [(1995) 5 SCC 75 = 1995 SCC (L&S) 1207 = (1995) 31 ATC 110], Kerala SEB Vrs. Kurien E. Kalathil [(2000) 6 SCC 293], A. Venkatasubbiah Naidu Vrs. S. Chellappan [(2000) 7 SCC 695], L.L. Sudhakar Reddy Vrs. State of A.P. [(2001) 6 SCC 634], Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha Vrs. State of Maharashtra [(2001) 8 SCC 509], Pratap Singh Vrs. State of Haryana [(2002) 7 SCC 484 = 2002 SCC (L&S) 1075] and GKN Driveshafts (India) Ltd. Vrs. ITO [(2003) 1 SCC 72].] *** *** *** *** 15. Thus, while it can be....
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....226 of Constitution of India at the stage of show cause notices. Though there is no bar as such for entertaining the writ petitions at the stage of show cause notice, but it is settled by number of decisions of this Court, where writ petitions can be entertained at the show cause notice stage. Neither it is a case of lack of jurisdiction nor any violation of principles of natural justice is alleged so as to entertain the writ petition at the stage of notice. High Court ought not to have entertained the writ petition, more so, when against the final orders appeal lies to this Court. The judgment of this Court in the case of Union of India Vrs. Guwahati Carbon Ltd., (2012) 11 SCC 651 = 2012 SCC OnLine SC 210 relied on by the learned senior counsel for the appellants also supports their case. In the aforesaid judgment, arising out of Central Excise Act, 1944, this Court has held that excise law is a complete code in order to seek redress in excise matters and held that entertaining writ petition is not proper where alternative remedy under statute is available. When there is a serious dispute with regard to classification of service, the respondents ought to have responded to the show....
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....notice. 6. On receiving replies from the assessees the Assessing Authority shall hear and dispose of the matters as expeditiously as possible in accordance with law and in accordance with the directions given hereinabove. 7. We make it clear that the Assessing Authority will decide the matters uninfluenced by any observations made by the High Court/Tribunal in the earlier round of litigation. 8. All contentions on both sides are expressly kept open. At this stage we do not wish to express any opinion on the merits of the case." 6.8. In an identical case relating to writ petition questioning the Show Cause Notice relating to service tax under the Chapter-V of the Finance Act, 1994, viz. Bhubaneswar Development Authority Vrs. Commissioner of Central Excise, 2015 SCC OnLine Ori 53 this Court observed as follows: "5. After hearing the learned counsel for the respective parties, it would be relevant herein to take note that the judgment of the Hon'ble Supreme Court in the case of Collector of Central Excise, Hyderabad Vrs. M/s. Chemphar Drugs and Liniments, Hyderabad, (1989) 2 SCC 127 and in particular, Para-9 thereof is....
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.... Hon'ble Supreme Court came to hold that this finding of fact having been ultimately held against the revenue by the Tribunal which is the final fact forum and dismissed the appeal filed by the revenue on the basis that it did not want to interfere the facts determined by the Tribunal in the said case. 8. In the present set of circumstances of the case, any finding by the Court at this stage is likely to be prejudicial, either the Petitioner-BDA or the Service Tax Authority. ***" 6.9. In Supreme Paper Mills Limited Vrs. Assistant Commissioner of Commercial Taxes, (2010) 11 SCC 593 = (2010) 31 VST 1 (SC), the Hon'ble Supreme Court after taking note of earlier case being Sales Tax Officer, Ganjam Vrs. Uttareswari Rice Mills, (1973) 3 SCC 171 = 1973 SCC (Tax) 123 = AIR 1972 SC 2617 = (1972) 30 STC 567 (SC) = (1973) 89 ITR 6 (SC), wherein challenge was made to Show Cause Notice, has been pleased to make the following observation: "14. In our considered opinion, the ratio of the aforesaid decision in Uttareswari Rice Mills case [(1973) 3 SCC 171 = 1973 SCC (Tax) 123] of this Court is squarely applicable to the facts of the present case. The expression used in....
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....A, the person concerned has to be afforded opportunity of being heard and after considering his representation, if any, the amount of duty of excise due from such person has to be determined by the Central Excise Officer. Without going into other details regarding the period of limitations and the circumstances under which show-cause notice can be issued, the crux of the matter is that such determination is after the issuance of show-cause notice followed by affording of opportunity and consideration of representation, if any, made by the person concerned. *** 10. The issuance of show-cause notice under Section 11-A also has some significance in the eye of the law. The day the show-cause notice is issued, becomes the reckoning date for various issues including the issue of limitation. If we accept the submission of the respondent that a prima facie view entertained by the department whether the matter requires to be proceeded with or not is to be taken as a decision or determination, it will create an imbalance in the working of various provisions of Section 11-A of the Act including periods of limitation. It will be difficult to reckon as to from which dat....
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....er time, if according to him the time given by the authority for filing the reply was required to be extended in order to enable her to collect further material. It cannot, therefore, be said that the Demand// cum-Show Cause Notice would be rendered invalid. Reference is made to GKN Driveshafts (India) Ltd. Vrs. ITO, (2003) 1 SCC 72 = 2002 SCC OnLine SC 1116 as the guiding rule for the Adjudicating Authorities as enunciated by the Hon'ble Apex Court. Paragraph 5 of said Judgment speaks as follows: "5. We see no justifiable reason to interfere with the order under challenge. However, we clarify that when a notice under Section 148 of the Income Tax Act is issued, the proper course of action for the noticee is to file return and if he so desires, to seek reasons for issuing notices. The assessing officer is bound to furnish reasons within a reasonable time. On receipt of reasons, the noticee is entitled to file objections to issuance of notice and the assessing officer is bound to dispose of the same by passing a speaking order. In the instant case, as the reasons have been disclosed in these proceedings, the assessing officer has to dispose of the objections, if filed, by p....
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....nder Section 44 for furnishing of the annual return for the financial year to which the tax not paid relates: Provided that no such assessment order shall be passed without giving the person an opportunity of being heard." 6.17. It is, therefore, necessary for the Proper Officer to examine on the basis of materials available on record and that are furnished by the petitioner-assessee whether he is required to proceed to assess the tax liability of the taxable person on account of failure to obtain registration. In order to conduct the assessment envisaged under Section 63, the Proper Officer is required to follow inter alia the mandate of Rule 100(2) of the OGST Rules which is as follows: "The Proper Officer shall issue a notice to a taxable person in accordance with the provisions of Section 63 in Form GST ASMT- 14 containing the grounds on which the assessment is proposed to be made on best judgment basis and shall also serve a summary thereof electronically in Form GST DRC-01, and after allowing a time fifteen days to such person to furnish his reply, if any, pass an order in Form GST ASMT-15 and summary thereof shall be uploaded electronically in Form GST D....