TaxTMI 
TaxTMI 
2022 (10) TMI 334
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....l): 1. This writ petition was listed before the Court, in the first instance, on 29.08.2022, when after hearing the counsel for the petitioner as well as the counsel for the respondents i.e., Ms Nidhi Raman, who appeared on behalf of respondent no.1/Union of India and Mr Satish Kumar, who appeared on behalf of the contesting respondent i.e., respondent no.2/revenue, the following had been recorded: "1. The principal grievance of the petitioner is, that the impugned Order-in-Original dated 25.05.2022 is based on a show cause notice ["SCN"], which is untenable in law. 2. Mr S. Sunil, who appears on behalf of the petitioner, says that the SCN could only have been issued after pre-show cause notice consultation had occurred, as contemplate....
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.... (1), make his submissions in writing on the grounds so communicated: Provided that if no response is received, from the person to whom the grounds on which notice is proposed to be issued, is received within the specified time, the proper officer shall proceed to issue the notice to the said person without any further communication : Provided further that while making the submissions, the person chargeable with duty or interest shall clearly indicate whether he desires to be heard in person by the proper officer. xxx xxx xxx (4) Where the proper officer, after consultation, decides not to proceed with the notice with reference to the grounds communicated under sub-regulation (1), he shall, by a simple letter, intimate the same to t....
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.... the contesting respondent, i.e., respondent no.2, says that he would require time to return with instructions. 12. In case instructions are received to resist the writ petition, counter-affidavit will be filed before the next date of hearing. 13. List the matter on 19.09.2022." 2. As would be evident from the extract of the order dated 29.08.2022, we had given an opportunity to Mr Kumar to return with instructions, and in the event, instructions received were to resist the petition, he was required to file a counter-affidavit before the returnable date i.e., 19.09.2022. 3. Concededly, the counter-affidavit was not filed, as directed by this Court via order dated 29.08.2022. 4. Resultantly, when the matter was listed on 19.09.2022, w....
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....and Regulation 3(2) of the Pre-Notice Consultation Regulations, 2018 [in short "2018 Regulations"]. 10. Mr S. Sunil, who appears on behalf of the petitioner, contends otherwise. 10.1 According to Mr Sunil, a perusal of the letter dated 28.06.2021 would show, that it was issued when Post Clearance Audit was conducted. 11. Furthermore, according to Mr Sunil, the said communication was not issued in terms of the aforementioned provisions of the 1962 Act and the 2018 Regulations. 12. Mr Kumar, on the other hand, relies upon the stand taken by respondent no.2/revenue in the aforementioned counter-affidavit. 13. Having heard the counsel for the parties, we are of the view that the order-in-original dated 25.05.2022 cannot be sustained. 14. ....
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....erefore, 15 days would have expired only on 29.12.2021. 17. Admittedly, the SCN was issued prior to the expiry of the statutory timeframe. 17.1 The SCN, as noticed in our order dated 29.08.2022, is dated 22.12.2021. 18. Therefore, clearly, there has been a violation of not only the safeguard provided in the proviso appended to Section 28(1)(a) of the 1962 Act requiring holding pre-notice consultation with the person chargeable with tax and interest but also infraction of the right of such person, to be accorded, in the very least, 15 days under sub-regulation (2) of Regulation 3 of the 2018 Regulations to respond to any such initiative of holding such consultation 18.1 The importance of pre-show cause notice consultation is exemplified ....