TaxTMI 
TaxTMI 
2024 (5) TMI 1213
X X X X Extracts X X X X
X X X X Extracts X X X X
....23 passed under sub-section [9] of Section 73 of the CGST Act, 2017 by the Assistant Commissioner, Central [Goods and Service Tax] & Central Excise Division, Silchar as the Adjudicating Authority. 2. The writ petitioner herein is a private limited company incorporated under the Companies Act, 1956 and it carries on the business inter alia of service provider. It has its registered office at Kolkata, West Bengal. With the enactments of the CGST Act, 2017 and the Assam Goods and Services Act, 2017 ['the AGST Act, 2017] and their coming into effect w.e.f. 01.07.2017, the petitioner company applied for registration under the said Acts and has been granted registration vide GSTIN 18AAECA7729F1ZL on 01.08.2017. The petitioner company is assessed under the office of the respondent no. 2, that is, the Principal Commissioner, Central GST & Central Excise Commissioner, GST Bhawan, Kedar Road, Machkowa, Guwahati, Pin - 781001, Assam. The petitioner company has asserted that it has been duly complying with all statutory requirements under the CGST Act, 2017/AGST Act, 2017 by way of filing its Statements of Outward Supply in GSTR - 1 and Monthly Returns in GSTR-3B till this date. 3. Section 6....
X X X X Extracts X X X X
X X X X Extracts X X X X
....erved upon the petitioner company on 01.09.2022. 6. As per sub-Section [7] of Section 65 of the CGST Act, 2017, where the Audit conducted under sub-section [1] of Section 65 results in detection of tax not paid or short paid or erroneously refunded, or input tax credit wrongly availed or utilised, the proper officer may initiate action under Section 73 or Section 74 of the CGST Act, 2017. 7. After issuance of the FORM GST ADT-02 on 01.09.2022, the Demand-cum- Show Cause Notice under sub-Section [1] of Section 73 of the CGST Act, 2017 stood issued to the petitioner company to show cause within 30 [thirty] days as to why :- [i] GST amounting to Rs.24,00,059/- [Rupees twenty four lakh and fifty nine only] [IGST: Rs. 19,11,519/- + CGST: Rs. 2,44,270/- + AGST: Rs. 2,44,270/-] in respect of Audit Para-3 should not be demanded and recovered from them as provided under Section 73 [1] of the Central Goods and Services Tax Act, 2017 / Assam Goods and Services Tax Act, 2017 read with Section 20 of the Integrated Goods and Services Tax Act, 2017 for contravention of Sections 16 and 155 of the Central Goods and Services Tax Act, 2017 / Assam Goods and Services Tax Act, 2017 as made applicab....
X X X X Extracts X X X X
X X X X Extracts X X X X
....spect of Audit Para-3 under Section 73 [1] of the Central Goods and Services Tax Act, 2017 / Assam Goods and Services Tax Act, 2017 read with Section 20 of the Integrated Goods and Services Tax Act, 2017. [2] I order that the said assessee should pay the due Interest on the said amount of Rs. 24,00,059/- [Rupees Twenty four lakh and fifty nine only] under Section 50 of the Central Goods and Services Tax Act, 2017 / Assam GST Act, 2017 read with the provisions of Section 20 of the Integrated Goods and Services Tax Act, 2017 and as provided under Section 73 of the Acts ibid; [3] I also impose a penalty of Rs. 2,40,006.00 [i.e. 10% of Rs. 24,00,059.00] as provided under Section 73 of the Central Goods and Services Tax Act, 2017 / Assam GST Act, 2017, as made applicable to Integrated Goods and Services Tax Act, 2017 vide Section 20 of the Act ibid. [4] I also impose a penalty of Rs. 50,000/- [Rupees Fifty thousand only] [CGST+AGST] under Section 125 of the Central GST Act, 2017 / Assam GST Act, 2017 read with CBIC Circular No. 76/50/2018-GST dated 31.12.2018 in respect of Audit Para-1. [5] I also impose a Penalty amounting to Rs. 10,000/- [CGST] in terms of Section 122[1][xvi] ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ssion of Ms. Mukherjee is to the effect that the Demand-cum-Show Cause Notice was issued by one authority but the Order-in-Original has been passed by another authority. Such procedure adopted by the respondent authorities are in clear violation of the principles of natural justice and as such, both the Demand-cum-Show Cause Notice dated 22.09.2023 and the Order-in-Original dated 14.12.2023 are not sustainable in law and the same are liable to be set aside and quashed. Ms. Mukherjee has further submitted that no personal hearing was afforded to the petitioner by the respondent authorities before passing the impugned Order-in-Original. 12. Au contraire, Mr. Keyal, learned Standing Counsel, CGST has submitted that the instant writ petition under Article 226 of the Constitution of India is neither maintainable nor entertainable, as there is a statutory remedy of appeal available to the petitioner under Section 107 of the CGST Act, 2017. All the grounds which are raised by the petitioner in the writ petition can be raised in a statutory appeal and as such, the instant writ petition is liable to be dismissed at the threshold. He has submitted that it has been held by a long line of dec....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y been made, or who has wrongly availed or utilised input tax credit, requiring him to show cause as to why he should not pay the amount specified in the notice along with interest payable thereon under Section 50 and a penalty leviable under the provisions of the Act or the rules made thereunder. 15. In the case in hand, the Demand-cum-Show Cause Notice was issued on 22.09.2023 by one Subhra Mukherjee, Assistant Commissioner, Central Goods and Services Tax, Silchar Audit Circle, Shillong Audit Commissionerate. It is not the case of the petitioner that a copy of the Demand-cum-Show Cause Notice dated 22.09.2023 was not served upon the petitioner. On receipt of a copy of the Demand-cum-Show Cause Notice dated 22.09.2023, the petitioner company submitted its Reply to the Demand-cum-Show Cause Notice after a period of more than two months on 04.12.2023. Thereafter, the Order-in-Original was passed on 14.12.2023. 16. As the first ground of challenge of the petitioner is based on sub-rule [1] of Rule 142 of the CGST Rules, 2017, it is apposite to refer to sub-rule [1] and sub-rule [5] of Rule 142 of the CGST Rules, 2017. The same are referred herein below for ready reference :- [1] ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uch notices / orders. Accordingly, any deviation from this requirement under CGST Rules may adversely impact record keeping under GST. Further, such an action may also impact further proceedings of appeal and / or recovery to be done seamlessly on the portal. 5. The proper officers are accordingly directed to ensure that summary of the notices issued under Section 52 or Section 73 or Section 74 or Section 122 or Section 123 or Section 124 or Section 125 or Section 127 or Section 129 or Section 130 of CGST Act are served, electronically on the portal in FORM GST DRC-01. Also, they should ensure that summary of the order issued under Section 52 or Section 62 or Section 63 or Section 64 or Section 73 or Section 74 or Section 75 or Section 76 or Section 122 or Section 123 or Section 124 or Section 125 or Section 127 or Section 129 or Section 130 of CGST Act is uploaded electronically on the portal in FORM GST DRC-07. 18. Before dilating on the above ground urged by the writ petitioner, it is appropriate to deal on the issue about the situations when despite availability of an alternative and efficacious statutory remedy, a writ petition under Article 226 can be entertained. Chapter ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....oking the jurisdiction of the High Court under Article 226 has not pursued, would not oust the jurisdiction of the High Court and render a writ petition 'not maintainable'. Availability of an alternative remedy does not operate as an absolute bar to the 'maintainability' of a writ petition. It has, thus, been observed that 'entertainability' and 'maintainability' of a writ petition are distinct concepts. While an objection to the 'maintainability' goes to the root of the matter, the question of 'entertainability' is entirely within the realm of discretion of the High Courts. Being otherwise maintainable, it has been enunciated that dismissal of a writ petition by a High Court on the ground that the petitioner has not availed the alternative remedy, without examining the aspect whether an exceptional case has been made out for such entertainment, would not be proper. 20. Having regard to the distinct concepts of maintainability and entertainability, there is no doubt that the instant writ petition is maintainable under Article 226 of the Constitution of India. The issue herein is, thus, whether this writ petition should be entertained or not in the backdrop of the obtaining fact si....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ai vs. Kamal Kumar, [1965] 2 SCR 653; Siliguri Municipality vs. Amalendu Das, [1984] 2 SCC 436; S.T. Muthusami vs. K. Natarajan, [1988] 1 SCC 572; Rajasthan SRTC vs. Krishna Kant, [1995] 5 SCC 75; Kerala SEB vs. Kurien E. Kalathil, [2000] 6 SCC 293; A. Venkatasubbiah Naidu vs. S. Chellappan, [2000] 7 SCC 695; L.L. Sudhakar Reddy vs. State of A.P., [2001] 6 SCC 634; Shri Sant Sadguru Janardan Swami [Moingiri Maharaj] Sahakari Dugdha Utpadak Sanstha vs. State of Maharashtra, [2001] 8 SCC 509; Pratap Singh vs. State of Haryana, [2002] 7 SCC 484; and GKN Driveshafts [India] Ltd. vs. ITO, [2003] 1 SCC 72]. 13. In Nivedita Sharma vs. Cellular Operators Assn. of India, reported in [2011] 14 SCC 337, this Court has held that where hierarchy of appeals is provided by the statute, the party must exhaust the statutory remedies before resorting to writ jurisdiction for relief : 13. In Titaghur Paper Mills Co. Ltd. v. State of Orissa, reported in [1983] 2 SCC 433 this Court observed : [SCC pp. 440-41, para 11] 11. ...It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only m....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titaghur Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. 21. The factual scenario which has emerged from the contentions of the learned counsel for the parties are that the petitioner had duly received a copy of the Demand-cum-Show Cause Notice dated 22.09.2023 but the summary of the said Demand-cum-Show Cause Notice was not uploaded electronically on the portal in terms of the provisions contained in Rule 142[1][a] of the CGST Rules, 2017 in FORM GST DRC-01. Simi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....provided in a statute for the benefit or interest of a particular person, the same can be waived by him if no public interest is involved. The ultimate result would be valid even if the requirement or condition is not performed. 23. In this connection, it is also pertinent to refer to the provision contained in Section 169, CGST 2017, which have provided for service of notices or orders. Section 169, CST Act, 2017 reads as under :- Section 169. Service of notice in certain circumstances.- [1] Any decision, order, summons, notice or other communication under this Act or the rules made thereunder shall be served by any one of the following methods, namely:- [a] by giving or tendering it directly or by a messenger including a courier to the addressee or the taxable person or to his manager or authorised representative or an advocate or a tax practitioner holding authority to appear in the proceedings on behalf of the taxable person or to a person regularly employed by him in connection with the business, or to any adult member of family residing with the taxable person; or [b] by registered post or speed post or courier with acknowledgement due, to the person for whom it i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lso personal hearing, could not be permitted to turn around and say that non-issuance of notice under Section 28 of the Customs Act, 1962 was fatal to the revenue. The three-Judge Bench in its Judgment has held that while non-issuance of notice under Section 28 of the Customs Act, 1962 may invalidate the procedure adopted by the proper officer under the Act, it would not take away the jurisdiction of the officer to initiate action for the purpose of recovery of the duty escaped. It has been held that Section 28 has only provided for the procedural aspect for recovery of duty. Hence, any irregularity committed by a proper officer in following the procedure laid down in Section 28 would not denude that officer of his jurisdiction to initiate action for recovery of escaped duty as the jurisdiction to initiate proceedings for recovery of escaped duty is traceable to statutory provision, other than Section 28. The question considered was can a mandatory requirement of a statute be waived by the party concerned. It has been held that even though a provision of law is mandatory in its operation if such provision is one which deals with the individual rights of the person concerned and is ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ive way to the parent statute. In essence, it is not a case of no service of either of the Demand-cum-Show Cause Notice or of the Order-in-Original. It is also not a case of no service of either the Demand-cum-Show Cause Notice or of the Order-in-Original in terms of Section 169 of the CGST Act, 2017. It is only a case of non-uploading on the common portal in terms of Rule 142 of the CGST Rules, 2017. With no prejudice alleged/pleaded qua non-uploading of the summary of the Order-in-Original on the common portal and with compliance of the provision contained in Section 169 of the CGST Act, 2017 as regards service of the Order-in-Original upon the petitioner-assessee the ground urged regarding non-uploading of the summary of the Order-in-Original on the common portal, in the considered view of this Court, is not an exceptional situation to entertain the writ petition. 27. The next contention advanced on behalf of the petitioner is that the Demand-cum-Show Cause Notice dated 22.09.2023 was issued by one authority, that is, Subhra Mukherjee, Assistant Commissioner, Central Goods and Services Tax, Silchar Audit Circle, Shillong Audit Commissionerate and the Orderin- Original dated 14.....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... In the absence of any such materials, the only conclusion which can be drawn is that the petitioner-assessee had failed to avail itself the opportunity of personal hearing and left the case to be decided by the Adjudicating Authority on the basis of the written Reply to the Show Cause Notice dated 04.12.2023. Thus, it is not a case which can be said to have fallen within the principle of law, 'one who hears must decide the case'. Moreover, the Demand-cum-Show Cause Notice had specifically indicated to the petitioner-assessee before whom it was called upon to show cause. When in such situation, an Adjudicating Authority was required to adjudicate on the basis of the grounds mentioned in the Demand-cum-Show Cause Notice and the grounds urged in the written Reply to the Demand-cum-Show Cause Notice, the contention raised that one authority had issued the Demand-cum-Show Cause Notice and another authority had passed the Order-in-Original is not to be accepted, more so, when the Order-in-Original has addressed on the grounds raised in the Demand-cum- Show Cause Notice. 30. In view of the discussion made above and for the reasons assigned therein, this Court is of the unhesitant view t....