TaxTMI 
TaxTMI 
2025 (6) TMI 1237
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....thwith. Learned Assistant Government Pleader Mr. Trupesh Kathiria waives service of notice of rule for the Respondent Nos.3, 4, 5 and 6 and learned Advocate Ms. Hetal G. Patel waives service of notice of rule for the Respondent Nos. 1 and 2. 4. By this petition under Article 227 of the Constitution of India, the Petitioner has prayed for the following reliefs:- "a. That Your Lordships may be pleased to issue writ of Certiorari or any other appropriate writ, direction or order for quashing and setting aside the Impugned Order dated 31.12.2024 along with summary of the order in form DRC 07 dated 03.01.2025, passed by the Assistant Commissioner of CGST, At Annexure 'I', Division VII, Ahmedabad South, being Respondent No. 1 under Section 74 of the CGST Act, 2017; b. That Your Lordships may be pleased to issue writ of Certiorari or any other appropriate writ, direction or order for quashing and setting aside the show cause notice dated 04.08.2024 together with the summary in form DRC 01 dated 13.08.2024, issued by the Ld. Assistant Commissioner of CGST, Division VII, Ahmedabad South, at Annexure-G being the Respondent No. 1, as the same has been issued beyon....
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....the Respondent-authority i.e. Respondent No. 1-Assistant Commissioner, CGST, pursuant to the show cause notice. After issuing show cause notice on 04.08.2024, pursuant to the investigation initiated against the Petitioner by the Officers of the Preventive Section, CGST, Ahmedabad South on the basis of reference received from the Central Investigation Bureau, Patna, Bihar, wherein, a list of such taxpayers who have availed ineligible ITC from non-existent taxpayers had been shared. 5.4 On the basis of such information, the show cause notice dated 04.08.2024 was issued to the Petitioner alleging that the Petitioner availed the ineligible ITC to the tune of Rs. 7,04,333/- from a fake/non-existent taxpayer namely M/s. D.K. Construction because on the basis of the information in Form GSTR-2A of the petitioner, it had come to the notice that apart from such non-existent tax payer, the Petitioner has also availed the ineligible ITC from about 62 other suppliers whose GSTINs were ab-initio cancelled and therefore, there is violation of provision of Section 16(2)(a) and Section 16 (2) (b) and Section 16 (2) (c) of the GST Act. It was alleged that the Petitioner had availed the ineligible....
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....udit and has already passed an Order-in-Original for the period 2017-18 and the Petitioner has preferred an appeal before the Commissioner (Appeals), whereas, for the period 2018-19 and 2019-20, the show cause notices have been issued for availing ITC by the Petitioner and adjudication was under process. 5.6 It was further contended that the Respondent No. 1 could not have invoked the provision of Section 74 of the Act for the extended period and more particularly for the period 2017-18, the show cause notice was time barred as the time period which is provided as per Section 74 of the Act would expire on 05.08.2024 whereas, the show cause notice was dated 13.08.2024. It was also contended that as per the Manual, the show cause notice is not matching with the tax period as per the system generated DRC-01 and the tax quantification as per the Manual is not matching with tax quantification as per the notice. It was further pointed out that the Respondent has no jurisdiction to issue the show cause notice as the State Tax Authorities have already commenced the assessment proceedings under Section 73/74 of the Act for the same period. It was also contended that the GST audit was com....
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....hority. 5.11 In support of his submissions, the reliance was placed on the following decisions:- 1. Bipin Kumar Agrawal Vs. Commissioner CGST and Central Excise reported in (2025) 28 Centax 143 (Ori.). 2. Interim order passed by this Court in the case of Kamleshkumar Shyamlal Shah Vs. Assistant Commissioner, Ghatak. 3 The decision of the Hon'ble Delhi High Court in case of Metalax Industries Vs. GST Officer Ward 66 reported in (2025) 26 Centax 404 (Del.) 4. The decision of Hon'ble Gauhati High Court in the case of Kanco Tea and Industries Ltd. Vs. Union of India reported in (2024) 23 Centax 37 (Gau.). 5. The decision of the Hon'ble Delhi High Court in the case of DLF Home Developers Ltd. Vs. Sales Tax Officer Class II Avato, Delhi reported in (2024) 24 Centax 169(Del.) 6. The decision of the Karnataka High Court at Bengaluru in the case of Toyota Logistics Kishor India Pvt. Ltd. Vs. Union of India reported in (2024) 23 Centax 403 (Kar.). 7. The decision of the High Court at Calcutta in the case of Baazar Style Retail Ltd. Vs. Deputy Commissioner of State Tax reported in (2024) 22 Centax 99 (Cal.) 8. The deci....
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....r issuance of show cause notice, and such evidence should also be made a part of the show cause notice." 5.14 Referring to the above instructions, it was submitted that the Respondent No. 1 could not have invoked the provisions of Section 74 (1) merely on account of non-payment of GST, without specific element of fraud or willful mis-statement or suppression of facts to evade tax. It was submitted that as per the impugned show cause notice as well as the Order-in-Original, the Respondent No. 1 has failed to point out any element of fraud or willful mis-statement or suppression of facts to evade tax by the Petitioner and therefore, the Respondent No. 1 could not have assumed the jurisdiction to issue the impugned show cause notice and passed the Order-in-Original under Section 74 of the Act by passing the impugned common order which was uploaded for each year from July, 2017-2018, 2018-19, 2019-20 separately on 03.01.2025. 5.15 It was therefore submitted that the Respondent No. 1 by the impugned common order as without considering the reply filed by the Petitioner is liable to be quashed and set aside. 6. Having heard learned advocate appearing for the Petitioner and on per....
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....s Court is not in a position to consider the same in detail and give a finding as if this Court is an Appellate Authority by considering the contention on merits. So far as the aspect of invocation of jurisdiction of the extended period is concerned, it is again the disputed question because the impugned order is dated 04.12.2024, whereas, the same is uploaded on 13.08.2024 and therefore, whether the said order can be said which is signed on 04.08.2024 is to be considered within the period of limitation as alleged by the Petitioner or not is also matter of examining the record. Therefore, in the facts of the case, without going into the merits of the matter and without referring to the decisions on merits as canvassed by learned advocate for the petitioner, the petition is not entertained at this stage with a liberty to the Petitioner to challenge the impugned Order-in-Original before the Appellate Authority as provided under Section 107 of the GST Act. We have relied upon the following observations in the case of The Assistant Commissioner of State Tax & Others Vs. M/s. Commercial Steel Limited reported in 2021 (9) TMI 480 SC as under:- "11. The Respondent had a statutory....