TaxTMI 
TaxTMI 
2024 (7) TMI 316
X X X X Extracts X X X X
X X X X Extracts X X X X
....The same is allowed in terms of the draft. To be carried out forthwith. 2. Heard learned advocate Mr. Paresh Dave for the petitioner and learned advocate Mr. Nikunt K. Raval for the respondent. 3. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:- "17(A) That Your Lordships may be pleased to issue a Writ of Prohibition or any other appropriate writ, direction or order completely and permanently prohibiting the Respondents herein from taking any action against the Petitioner pursuant to proceeding of Show Cause Notice File No. STC/15-36/O&A/2020 dated 28.09.2020. (B) That Your Lordships may be pleased to issue a Writ of Mandamus or any other appropriate writ, order or....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l Commissioner, Central Excise & GST issued show cause notice for recovery of Rs. 59,87,560/- as service tax for financial year 2014-15 to financial year 2016-17. 4.6 It is the case of the petitioner that before issuance of the show cause notice for the demand exceeding Rs. 50,00,000/-, the respondent - Department is in breach of mandatory condition of pre-notice consultation laid down by the Government vide para No. 5 of the Master Circular dated 10th March, 2017. 5. Learned advocate Mr. Paresh Dave for the petitioner referred to and relied upon decision in case of Dharamshil Agencies v. Union of India in Special Civil Application No. 8255 of 2019 and submitted that the show cause notice may be quashed and set aside and matter may be rem....
X X X X Extracts X X X X
X X X X Extracts X X X X
.....04.2024, time was sought on behalf of the respondent stating that the hearing of pre notice consultation is fixed on 23rd April, 2024. Therefore, the matter was adjourned today i.e. on 26th June 2024. 7. Learned advocate Mr. Paresh Dave for the petitioner submitted that the respondent authorities have conducted the pre notice consultation on 23.04.2024 and the petitioner has filed a detailed submission pursuant to such notice. 8. Learned advocate Mr. Nikunt R. Raval for the respondent submitted upon instructions that respondents have not passed any order on pre-notice consultation because the present petition is pending. 9. In view of the above, we notice that during pendency of this petition, the order dated 14.03.2024 is clear to the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... consultation with the noticee before issue of show-cause notice. The said paragraph being relevant reads as under:- "5. Consultation with the noticee before issue of Show Cause Notice: Board has made pre-show cause notice consultation by the Principal Commissioner/Commissioner prior to issue of show cause notice in cases involving demands of duty above Rs. 50 lakhs (except for preventive/office related SCN's) mandatory vide instruction issued from F. No. 1080/09/ DLA/MISC/15, dated 21st December 2015. Such consultation shall be done by the adjudicating authority with the assessee concerned. This is an important step towards trade facilitation and promoting voluntary compliance and to reduce the necessity of issuing show cause notice." ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eriod gets time-barred as the returns for the relevant period were filed on 15.4.2014 and the demand for the recovery of service tax could be made within the period of five years, which was to expire on 15.4.2019, the Court does not find any substance in the same. It was the respondent authorities who had not issued the pre-show-cause notice for consultation immediately after the final audit report issued on 28.2.2019, and they waited till the last date on 12.4.2019, knowing fully well that the period of five years was to expire on 15.4.2019. If the respondents did not take any steps on time, and issued the pre-show-cause notice for consultation on the last date as an eye-wash, it could not be said that the petitioner assessee had requested....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n arrived at by the Income-tax Officer was correct or dismissing the petition because otherwise the party would get unfair advantage. The power to quash an order under Article 226 can be exercised not merely when the order sought to be quashed is one made without jurisdiction in which case there can be no room for the same authority to be directed to deal with it. But in the circumstances of a case the Court might take the view that another authority has the jurisdiction to deal with the matter and may direct that authority to deal with it or where the order of the authority which has the jurisdiction is vitiated by circumstances like failure to observe the principles of natural justice the Court may quash the order and direct the authority....