TaxTMI 
TaxTMI 
2025 (5) TMI 795
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....the Respondent No. 3 whereby the demand of Rs. 4,37,17,830/- along with interest and penalty was created. (B) That this Hon'ble Court may be pleased to issue writ in the nature of mandamus or any other writ holding that the petitioner is rightly eligible for the input tax credit availed for the period from 2017-18 to 2021-22 (C) That this Hon'ble Court may be pleased to issue of writ in the nature of certiorari holding that the amendment to explanation to section 16(2)(b) is to be applied retrospectively. (D) That this Hon'ble Court may be pleased to issue of writ of mandamus holding that the proceedings under Section 74 of the proceedings under Section 74 of the CGST Act, 2017 does not survive in the absence of willful suppression." 2. The respondents have raised preliminary objections regarding the maintainability of the instant petition on the ground of availability of alternate statutory remedy as per the scheme of the Central Goods and Service Tax Act, 2017 (for short the 'CGST Act'). It is submitted that the petition is premature at this stage as the petitioner has approached this Court against a show cause notice which is yet to be adjudicated. Even after the adju....
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....024. The petitioner filed a detailed reply on 30.05.2024 wherein it was submitted that the petitioner is not liable to discharge any outward liability. 11. The respondent No. 3 issued show cause notice bearing DIN No. 20240550ZG000000D39B, dated 31.05.2024 in FORM GST DRC-01 under Section 74(1) of the CGST Act proposing to demand and recover the alleged inadmissible input tax credit (hereinafter referred to as 'ITC') or Rs. 4,36,75,439/-, alleged short paid GST to the tune of Rs. 27,446/-, interest on non-payment of GST of Rs. 14,945/- and interest and penalty in terms of CGST Act on the demands proposed above. The show cause notice also proposed to appropriate the GST paid amounting to Rs.6,85,440/- towards the demand proposed in the show cause notice. 12. The petitioner being aggrieved by the aforesaid show cause notice has filed the present writ petition. 13. It is vehemently argued by Shri G. Shivadass, learned Senior Advocate, assisted by Ms. Shradha Rajgiri, Advocate, for the petitioner, that the present writ petition is maintainable despite the availability of alternate remedy to the petitioner as the present show cause notice has been issued with a preconceived mind and ....
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.... (16) SCC 447. 21(i) The facts therein were that the High Court in exercise of its writ jurisdiction under Article 226 of the Constitution, set aside the action of the appellants therein in collecting an amount of Rs.4,16,447/- from the respondents towards tax and penalty under CGST and the State Goods and Service Tax Act (hereinafter referred to as the 'SGST Act') and directed a refund together with interest @ 6% per annum from 13.12.2019. A further direction was given to the State of Telangana to consider initiating disciplinary proceedings against the Assistant Commissioner and costs of Rs. 25,000/- was also imposed on the first appellant, who was the first respondent before the High Court. 21(ii) The respondent therein was a proprietary concern engaged in the business of iron and steel and was registered under CGST. The respondent purchased certain goods from a dealer JSW Steel Limited, Vidyanagar, Karnataka under a tax invoice dated 11.12.2019. The consignment of goods was being carried in a truck bearing registration No. KA 35C 0141. While it was proceeding from the State of Karnataka, it was intercepted on 12.12.2019 at 5:30 pm at Jeedimetala. The tax invoice indicated tha....
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.... to the vires of the statute or delegated legislation. 12. In the present case, none of the above exceptions was established. There was, in fact, no violation of the principles of natural justice since a notice was served on the person in charge of the conveyance. In this backdrop, it was not appropriate for the High Court to entertain a writ petition. The assessment of facts would have to be carried out by the appellate authority. As a matter of fact, the High Court has while doing this exercise proceeded on the basis of surmises. However, since we are inclined to relegate the respondent to the pursuit of the alternate statutory remedy under Section 107, this Court makes no observation on the merits of the case of the respondent. 13. For the above reasons, we allow the appeal and set aside the impugned order of the High Court. The writ petition filed by the respondent shall stand dismissed. However, this shall not preclude the respondent from taking recourse to appropriate remedies which are available in terms of Section 107 of the CGST Act to pursue the grievance in regard to the action which has been adopted by the state in the present case." 22. Adverting to the facts o....
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.... tax under the Act without having applied for registration or that he supplied or received any goods in contravention of any of the provisions of the Act. From the perusal of show cause notice issued to the petitioner under Section 130, the case alleged against the petitioner is that of wrongful claim of input tax credit. The petitioner or for that matter any registered person shall be entitled to tax credit of input tax on any supply of goods or services, only when he shall is able to show that the tax in respect of such supply has been paid to the Government either in cash or through utilization of input tax credit admissible in respect of the said supply. Needless to reiterate any person can claim input tax credit under the provisions of the 2017 Act only if the same has been actually paid to the Government. Thus, the action of the respondents in initiating proceedings under Section 130 on the basis of show cause notice dated 14.09.2021 cannot be sustained." 23(iii). Setting aside the judgment passed by the High Court, the Hon'ble Supreme Court observed as under : - " Apart from the fact that the aforesaid is factually incorrect, even otherwise, it was premature for the High....