2022 (8) TMI 753 - ORISSA HIGH COURT

Validity of Demand-cum- Show Cause Notice under Section 63 of the CGST/OGST Act - scope of alternative remedy - participation of assessee in the proceeding by furnishing appropriate explanation in order to determine the correct tax liability - demand of tax with interest and penalty - HELD THAT:- Clear proposition with reasons are found mentioned in the impugned Demand-cum-Show Cause Notice as to why the Proper Officer has sought to invoke the provisions of Section 63 of the CGST/OGST Act which essentially relates to the facts and circumstances of the case. Of course, the petitioner has the fullest opportunity to refute and rebut the same during the course of proceeding. It is possible for the petitioner to seek for further time, if according to him the time given by the authority for filing the reply was required to be extended in order to enable her to collect further material. It cannot, therefore, be said that the Demand// cum-Show Cause Notice would be rendered invalid.

The present case seems neither to be a case of lack of jurisdiction nor is there any allegation of violation of principles of natural justice. The petitioner has ample opportunity to agitate issue before the Proper Officer. Therefore, this Court feels entertainment of the writ petition at the stage of Demand-cum- Show Cause Notice would be premature. Doing so would frustrate the tax administration and adjudication process. This Court is alive to the fact that the statute under consideration, viz., the CGST/OGST Act(s) and rules framed thereunder provide sufficient safeguard for the assessee-petitioner, more so, when against the final orders of adjudication, appeal lies.

It is, therefore, necessary for the Proper Officer to examine on the basis of materials available on record and that are furnished by the petitioner-assessee whether he is required to proceed to assess the tax liability of the taxable person on account of failure to obtain registration - the enquiry/process of assessment requires factual determination with reference to liability and requirement of obtaining registration. Having not found illegality, irrationality, procedural impropriety and proportionality in issue of Demand-cum-Show Cause Notice by the Proper Officer, this Court does not, therefore, deem it expedient to exercise its extraordinary jurisdiction under Article 226 of the Constitution of India, and the petitioner is, therefore, relegated to place appropriate material before the Proper Officer for arriving at just determination of liability.

This Court does not wish to entertain the writ petition challenging Demand-cum-Show Cause Notice issued under Section 63 of the OGST Act/the CGST Act and, therefore, the writ petition stands dismissed.