TaxTMI 
TaxTMI 
2024 (2) TMI 235
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....rit of Prohibition or any other appropriate writ or order or direction restraining the 1st Respondent from proceeding with the assessment for the tax period 2017-18 initiated vide show cause notice dated 21.9.2023 as being barred by limitation without jurisdiction inconsistent to admitted facts and contrary to Section 140(3) of the Central Goods and Services Tax Act 2017 and pass" 3. The challenge is on the ground that the notice has been issued under Section 74 of the Central Goods and Services Tax Act, 2017 (for short 'CGST Act'), though the ingredients for initiation of the proceedings i.e. 'suppression' is not made out. The notice does not contain the reasons and particulars of any suppression. He places reliance in the case of Uniworth Textiles Limited v. Commissioner of Central Excise and Venkata Durga Oil Traders v. Commercial Tax Officer. 4. Learned Senior Counsel however submits that the notice could have been under Section 73 but not under Section 74 of CGST Act. 5. Learned counsel for the respondents has raised objection that the challenge to the show-cause notice on the ground of challenge is not sustainable at this stage under Article 226 of Constitution of In....
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.... credit, the taxpayer was not liable for registration under the existing law [Service Tax Law]. (ii) The taxpayer was providing works contract service and it appears that they were not availing of the benefit of notification No.26/2012- Service Tax, dated the 20th June, 2012, which is a conditional exemption notification. (iii) The taxpayer was availing the benefit of exemption in terms of Sl.No.12A (a), 13(a) & 14 of Notification No.25/2012-ST dated 20.06.2012 and abatement vide Sl.No.1 of Notification No.24/2012-ST dated 06.06.2012, as reflected in the ST-3s filed for the Half-Year Ending 30.09.2016, 31.03.2017 & 30.06.2017, in respect of Works Contract Service, which appears to be outside the scope of the provisions of Section 140(3) of the CGST Act, 2017 7. CONTRAVENTIONS: 7.1. Section 59 of the CGST Act provides: Every registered person shall self-assess the taxes payable under this Act and furnish a return for each tax period as specified under section 39. Section 59 - Self-assessment In the age of liberalisation, huge amount of trust and faith have been posed on the taxpayers. Revenue department allows the tax pa....
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....tion and penalty can be imposed under the provisions of Section 74 (1) of the CGST Act. 2017. 9. In terms of the above statutory and recovery provisions, it appears that the taxpayer wrongly carried forward the transition credit of Rs. 1,75,30,798/- vide Table 7a of the Transitional Credit/Stock Statement filed by the taxpayer and the said amount is recoverable along with interest and penalty." 11. In view of the above, we are not convinced with the submission that the show cause notice does not contain the reasons for its issuance. 12. As per the Explanation 2, suppression shall mean non-declaration of facts or information, which a taxable person is required to declare in the return, statement, report or any other document furnished under the Act or the rules made thereunder, or failure to furnish any information on being asked for, in writing, by the proper officer. The question if there is suppression or not can be determined by the authority, considering the reply, if so filed. 'Suppression' is a question of fact. In view of the explanation, whether the facts upon which show cause notice has been issued, constitute suppression or not cannot be determined at this ....
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....held that the burden of proving malafide conduct under the proviso to Section 28 of Customs Act lies with the Revenue, that in furtherance of the same, no specific averments were mentioned in the show cause notice which was the mandatory requirement for commencement of action under the proviso to Section 28. There was also nothing on record to display a willful default on the part of the appellant therein. Consequently, it was held that the extended period of limitation under proviso of Section 28 could not be invoked against the appellant. 18. In the present case, in view of the submissions advanced as also the admitted position that the limitation period for notice under Section 73 did not expire on the date the impugned notice was issued, the question of extended period of limitation for issuance of notice under Section 74 is not involved. Had it been, the contention of the learned counsel for the petitioner that the period of limitation for issuance of notice under Section 73 had expired but any such notice was not issued and consequently to overcome the bar of limitation, the notice was issued under Section 74 even without satisfying the requirements of Section 74 the consi....
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....n. It dependents upon the contents. 22. In W.P. No. 28743 of 2023 decided on 09.11.2023, the Coordinate Bench of this Court held in paras 26 to 30 as follows; on the point of entertainability of the writ petition against the show cause notice. "26. In Special Director v. Mohd. Ghulam Ghouse (2004) 3 SCC 440 the Hon'ble Apex Court deprecated the practice of High Courts entertaining writ petitions questioning the legality of show cause notices stalling enquiries as proposed and retarding investigative process. The Hon'ble Apex Court held that unless the High Court is satisfied that the show cause notice was totally non est in the eye of the law for absolute want of jurisdiction of the authority to even investigate into facts, the writ petitions should not be entertained for the mere asking and as a matter of routine, and the writ petitioner should invariably be directed to respond to the show cause notice and take all stands highlighted in the writ petition. 27. It is apt to refer paragraph-5 of Mohd. Ghulam Ghouse (supra) as under: "5. This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questi....
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.... all the objections before the authority who had issued a show-cause notice and the redressal in terms of the existing provisions of the law could be taken resort to if an adverse order was passed against such person. For example in Union of India v. Guwahati Carbon Ltd. [Union of India v. Guwahati Carbon Ltd., (2012) 11 SCC 651], it was concluded; "The Excise Law is a complete code in order to seek redress in excise matters and hence may not be appropriate for the writ court to entertain a petition under Article 226 of the Constitution", while in Malladi Drugs & Pharma Ltd. v. Union of India [Malladi Drugs & Pharma Ltd. v. Union of India, (2020) 12 SCC 808] , it was observed: "... The High Court, has, by the impugned judgment held that the appellant should first raise all the objections before the Authority who have issued the show-cause notice and in case any adverse order is passed against the appellant, then liberty has been granted to approach the High Court ... ... in our view, the High Court was absolutely right in dismissing the writ petition against a mere show-cause notice." 15. It is thus well settled that writ petition should normally not be e....