AI Drafter - (New and Powerful) 
Generate professional replies, appeals, opinions to Show Cause Notices, assessment orders, audit objections, and other legal communications using TaxTMI's AI Drafter. 
TaxTMI 
TaxTMI 
2023 (8) TMI 1152
X X X X Extracts X X X X
X X X X Extracts X X X X
....et, we may observe that when the petitioner is before the Court pointing out serious lapses on the part of respondent no. 2- Commissioner of Central GST, reply affidavit to the petition has been filed by the said respondent but by Shri. Akshay Patil, Deputy Commissioner of CGST & Central Excise, Division-IV, Mumbai. We wonder as to why the Commissioner who has issued the show cause notice and who has impleaded as respondent no. 2 has kept himself away from the Court and has not bothered to respond to this petition when whatever was happening with show cause notice, was to the knowledge of this officer only. It can never be conceived that the Deputy Commissioner who has filed the reply affidavit is a person competent to file such affidavit. 4. We were constrained to make the above observations as we take judicial notice of series of petitions reaching this Court on the ground that the concerned jurisdictional officers exercising such enormous powers not only under the Finance Act, 1994, but also under the other Central Acts, for reasons which are totally ill-conceived and contrary to law, have not adjudicated and/or taken forward the show cause notice for unduly long periods and ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... same pending for such a long period itself is not what is conducive. 19. It is well said that time and tide wait for none. It cannot be overlooked that the pendency of show cause notice not only weighs against the legal rights and interest of the assessee, but also, in a given situation, it may adversely affect the interest of the revenue, if prompt adjudication of the show cause notice is not undertaken, the reason being a lapse of time and certainly a long lapse of time is likely to cause irreversible changes frustrating the whole adjudication. 20. We are also of the clear opinion that a substantial delay and inaction on the part of the department to adjudicate the show cause notice would seriously nullify the noticee's rights causing irreparable harm and prejudice to the noticee. A protracted administrative delay would not only prejudicially affect but also defeat substantive rights of the noticee. In certain circumstances, even a short delay can be intolerable not only to the department but also to the noticee. In such cases, the measure and test of delay would be required to be considered in the facts of the case. This would however not mean that an egregion....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rsonal hearing. Copy of such request letter is annexed to the petition at Exhibit "B". Such a request was again made on 18 January, 2011. The petitioner by its letter dated 18 February, 2011 requested respondent no. 2 to provide break-up of the annual cumulative amount of value of taxable services as set out in Annexure-A to the show cause notice in relation to the service tax allegedly payable on import of Management Consultancy Service, for the reason that this formed the basis of the show cause notice and being a document relevant to the show cause notice, the same ought to have been supplied to the petitioner. By further letter dated 14 March, 2011, the petitioner informed respondent no. 2 that it had deposited an amount of Rs. 83,49,786/- in respect of service tax and interest under the banking and financial services, under protest. Thereafter on 22 August, 2011, the petitioner filed its reply to the Audit Report No. 285/09-10. 8. It appears that since August 2011 to February 2016, nothing was done by the department and this was certainly a period prior to the GST regime being set into motion. In fact, nothing precluded respondent no. 2 to call upon the petitioner and pass ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uch request. It was again open to respondent no. 2 to reject such request and proceed to adjudicate the show cause notice, however such approach was not adopted, as also no explanation in that regard expected from a public officer is coming forth. 12. What is glaring, is that thereafter from the adjourned date of hearing i.e. 11 May, 2016 upto February, 2021, which is again a second tranche of period of 5 years, respondent no. 2 did not bother to take any action on the show cause notice and in fact, it appears that the show cause notice was forgotten. It is on such conspectus, being aggrieved by uncertainty and the sword of Damocles of the show cause notice hanging, the petitioner filed the present petition on 23 March, 2021, praying that as no action was taken on the show cause notice for such a long time, the same is required to be quashed and set aside. The petitioner has accordingly prayed for the following substantive reliefs in the present petition:- "(a) that this Hon'ble Court be pleased to issue a Writ of Certiorari or a writ in the nature of Certiorari or any other writ, order or direction under Article 226 of the Constitution of India calling for the records ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sions of sub-section (4)(B) which were inserted by the Finance Act 2014 being the statutory mandate was staring at respondent no. 2 during the pendency of the show cause notice not to conclude the proceedings of the show cause notice. However, the conduct of respondent no. 2 was totally overlooking the mandate of such legal requirement. In considering the provisions of Section 73(4)(B), in our decision in Coventry Estates Pvt. Ltd. Versus The Joint Commissioner CGST and Central Excise & Anr. (supra), we have made the following observations:- "15. Considering the plain consequences, Section 73(4B)(a) and (b) would bring about, it would be an obligation on the Central Excise Officer to determine the amount of service tax due under subsection (2), within six months from the date of notice or within a period of one year from the date of notice, where it is possible to do so, in respect of cases falling under the proviso to sub-section (1) or the proviso to sub-section (4A). Thus, the statute itself prescribes for such period within which the service tax would be required to be determined. Sub-section (1) of Section 73 would also be relevant when it restricts the liability to s....