TMI Blog2022 (10) TMI 1062X X X X Extracts X X X X X X X X Extracts X X X X ..... o be considered by the authority. Petition dismissed. - D.B. Civil Writ Petition No. 9877/2022 - - - Dated:- 9-9-2022 - HON'BLE THE ACTING CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA AND HON'BLE MR. JUSTICE VINOD KUMAR BHARWANI For Petitioner: Mr. Jatin Harjai Advocate with Mr. Mohit Kumar Soni Advocate. For Respondent: Mr. Ajay Shukla Advocate, Mr. Punit Singhvi Advocate with Mr. Ayush Singh Advocate. JUDGMENT We have heard extensive arguments of learned counsel for both the parties when the matter comes up for admission as also on the prayer for grant of interim relief. Challenge to issuance of show cause notice dated 18.01.2022 is essentially on the submission that the issuance of notice itself is without jurisdiction because under the division of jurisdiction of taxation authorities, issuance of notice by the respondents-authorities when the assessment in relation to the petitioner-assessee is assigned to Central Taxation Authority, is not permissible in law. An issue of cross empowerment has been raised referring to provisions contained in Section 6 of the Rajasthan Goods and Services Tax Act, 2017 (hereinafter referred to as the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not raised. He would submit that post legislation GST Council had issued Circular dated 20.09.2017 (Annexure-P/13) clarifying the issue, but the authorities have acted erroneously once division of jurisdiction was notified vide Annexure-P/14 and petitioner s assessment assigned to Central Taxation Authorities, in view of the order of the Hon ble Supreme Court in the case of Union of India Anr. Versus M/s Mohit Minerals Pvt. Ltd. through Director, 2022 (5) TMI 968 Supreme Court , the action of the authority is per se without jurisdiction, violative of statutory principles as also statutory provisions and in violation of the principles of natural justice. In support of his submission on the issue of jurisdiction, reliance has been placed on the order of the Allahabad High Court in the case of Ajay Verma Versus Union of India and Ors., (2022) 102 GSTR 13 (All). Further submission has been made that the respondents-authorities have prejudged the issue and at the same time, an argument has also been raised that the show cause notice is not clear and vague and, therefore, on this ground, the writ petition may be entertained, it being a case of exception to general rule that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seek adjudication by the authority rather than rushing to this Court against the show cause notice. Learned counsel for the petitioner would argue that the decisions of the Madras High Court in the case of Kuppan Gounder P.G. Natarajan Versus Directorate General of GST Intelligence, New Delhi (supra) as relied upon by the learned counsel for the respondents/revenue are per-incuriam. It is well settled that ordinarily, against show cause notice, Writ Court would not interfere unless it is a case of exceptional nature. In the case of Union of India and Others Versus Coastal Container Transporters Association and Others, (2019) 20 Supreme Court Cases 446 , the law governing limited scope of interference against show cause notice was declared by Their Lordships in the Hon ble Supreme Court as below:- 30. On the other hand, we find force in the contention of the learned senior Counsel, Sri Radhakrishnan, appearing for the appellants that the High Court has committed error in entertaining the writ petition under Article 226 of Constitution of India at the stage of show-cause notices. Though there is no bar as such for entertaining the writ petitions at the stage of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xceptions. Where a show-cause notice is issued either without jurisdiction or in an abuse of process of law, certainly in that case, the writ court would not hesitate to interfere even at the stage of issuance of show cause-notice. The interference at the show-cause notice stage should be rare and not in a routine manner. Mere assertion by the writ petitioner that notice was without jurisdiction and/or abuse of process of law would not suffice. It should be prima facie established to be so. Where factual adjudication would be necessary, interference is ruled out. The Hon ble Supreme Court in the case of Union of India and Another Versus Kunisetty Satyanarayana , (2006) 12 Supreme Court Cases 28 held as below:- 13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge-sheet or showcause notice vide Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh (1996) 1 SCC 327, Special Director v. Mohd. Ghulam Ghouse (2004) 3 SCC 440, Ulagappa v. Divisional Commr., Mysore 2001 (10) SCC 639, State of U.P. v. Brahm Datt Sharma (1987) 2 SCC 179, etc. 14. The reason why ordinarily a writ petition should not be entertai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inted under the State Goods and Services Tax Act or the Union territory Goods and Services Tax Act are authorised to be the proper officers for the purposes of this Act, subject to such conditions as the Government shall, on the recommendations of the Council, by notification, specify. 2. Arguing that in this case the GST Council had delineated jurisdiction of the State and Central authorities by Notification dated 20-09-2017 (No.1 of 2017), it is submitted that the State authority lacks jurisdiction to investigate and bring to assessment any amounts having regard to the peculiar circumstances of the case. 3. The State s arguments while resisting challenge to the proceedings initiated is that pursuant to the decision of the CST Council, the enquiry was only with respect to the enforcement action. As far as the components of claim towards the credit under the Central Sales Tax Act (CST) and State Value Added Tax (VAT) are concerned, it was submitted that having regard to the investigation and orders made pursuant to the TRAN-01 claims for credit under Section 140(3) of the GST Act, which was limited in character, even in terms of Circular 1 of 2017, which the petitioner relie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otherwise of the show cause notice having regard to the fact that an alternative remedy by way of an appeal exists in favour of the petitioner. In case, if so advised, the petitioner prefers such an appeal, the same shall be decided on merits. 8. The writ petition is accordingly dismissed. Other argument, which has been raised by the learned counsel for the petitioner to seek indulgence of this Court at the stage of show cause notice itself is based on alleged violation of certain statutory provisions, which have been opposed by the learned counsel for the respondents/revenue and whether or not it is a case of statutory violation itself will depend upon consideration of various factual aspects of the case. Violation of provisions contained in Rule 142 of the Rules of 2017 as alleged by the petitioner, has been repelled by the respondents by stating that the petitioner has relied upon unamended provisions. Petitioner seems to be aggrieved by the issuance of show cause notice insofar as it is proposing imposition of tax based on discrepancy in the Input Tax Credit details in GSTR-02A and GSTR-03B is concerned. It is not the case of the petitioner that there is no discrepan ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
