TMI Blog2022 (5) TMI 1137X X X X Extracts X X X X X X X X Extracts X X X X ..... inasmuch as the word shall has been replaced with may . As to what would be the impact of the amendment need not be considered by us in this case, as admittedly the show cause notice was issued prior to 15.10.2020 i.e., on 21.05.2020 - having regard to the position which obtained prior to 15.10.2020, we would have to hold that pre-show cause notice consultation was mandatory under the unamended Rule 142 (1A). A voluntary statement cannot substitute a statutory notice, which is contemplated under Rule 142(1A) of the 2017 Rules - impugned show cause notice dated 21.05.2020 is set aside - petition allowed. - W.P.(C) 5407/2020 & CM APPL. 19473/2020 - - - Dated:- 18-5-2022 - HON'BLE MR. JUSTICE RAJIV SHAKDHER AND HON'BLE MS JU ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above be not imposed upon them under Section 74 and Section 122 (1) of the CGST Act, 2017 read with relevant provisions of the IGST Act, 2017, the Delhi / the Haryana SGST Act, 2017 Section 11 of the GST (Compensation to States Act). 13.56 Mr. Tarun Gulati, Authorised signatory, M/s Gulati Enterprises, 316, FIE Patpargmj Industrial Area, Delhi (GSTIN 07AAGPK8981Q1ZQ) is also called upon to show cause to the Additional Commissioner/Joint Commissioner, CGT Commissionerate Delhi (East) having office at C.R. Building, I.P. Estate, New Delhi within 30 days of the receipt of this Show Cause Notice as to why penalty should not be imposed upon him under Section 122(I) of the CGST Act, 2017 and Section 122(1) of the Haryana/Delhi SGST Act, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s is claimed. 4.4. Concededly, in this case, no pre-show cause consultation notice, as required in the statutory form, was served on the petitioner. 5. Mr. Harpreet Singh, who appears on behalf of the respondents/revenue, says at the relevant point in time i.e., when the impugned show cause notice dated 21.05.2020 was issued, the statutory form referred to hereinabove was not activated on the web portal. 5.1. It is therefore Mr. Singh s contention that it is on account of this reason that a pre-show cause consultation notice could not be issued to the petitioner. 6. That said, Mr. Singh says that because the authorised signatory of the petitioner proprietorship concern gave a voluntary statement before the concerned officer, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, as set forth in paragraph 5.0 of the master circular, was mandatory, as it was also in line with an earlier instruction dated 21.12.2015. 8.3. The aforementioned aspects were referred to in paragraph 5 and 5.1 of the judgment in Back Office IT Solutions Pvt. Ltd., which reads as follows: 5. Having heard the learned counsel for the parties, we are of the view that what requires to be noticed, in the first instance, is the relevant paragraph contained in the 2017 Master Circular, which is, extracted hereafter: 5.0 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 involvin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also note that with effect from 15.10.2020 i.e., after the impugned show cause notice was issued, Rule 142(1A) has undergone a change, inasmuch as the word shall has been replaced with may . As to what would be the impact of the amendment need not be considered by us in this case, as admittedly the show cause notice was issued prior to 15.10.2020 i.e., on 21.05.2020. The amended provision, with effect from 15.10.2020, reads as follows: 142 (1A) The proper officer may before service of notice to the person chargeable with tax, interest and penalty, under subsection (1) of Section 73 or sub-section (1) of Section 74, as the case may be, communicate the details of any tax, interest and penalty as ascertained by the said officer, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e submission and while doing so made the following observations 3.3. Insofar as the captioned writ petitions are concerned, as noted above, the defence taken by the contesting respondents is that pre-show cause notice consultation had occurred and, in that context, reliance is placed upon the statements made by the petitioners officials [pursuant to summons issued to them], before the Senior Intelligence Officer under Section 14 of the Central Excise Act, 1944, as made applicable to Service Tax matters vide Section 83 of the Finance Act, 1994. 3.4. We are of the view that voluntary statements recorded before the Senior Intelligence Officer cannot constitute pre-show cause notice consultation as envisaged in the paragraph 5 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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