TMI Blog2023 (12) TMI 943X X X X Extracts X X X X X X X X Extracts X X X X ..... raised that the CAG is not the Proper Officer to issue any kind of letters regarding the discrepancy. This Court finds force in the contentions advanced by the petitioner that an act of issuance of the impugned Demand-cum-Show Cause Notice dated 05.09.2023 under Section 73[1] of the CGST Act, 2017 by the Proper Officer was without compliance of the mandatory conditions precedent, prescribed under the CGST Act, 2017 and the CGST Rules, 2017, more particularly, the provisions of Section 61 of the CGST Act, 2017 r/w Rule 99 of the CGST Rules, 2017, to derive jurisdiction to issue such a Demand-cum- Show Cause Notice under Section 73[1] of the CGST Act, 2017, impugned herein. Thus, it is ordered that the operation of the impugned Demand-cum-Show Cause Notice shall remain stayed, till the returnable date. - Honourable Mr. Justice Manish Choudhury For the Petitioner : MRS. R BORAH For the Respondent : DY.S.G.I. ORDER Heard Mr. R. Shah, learned Senior Counsel through virtual mode, assisted by Mr. D. Borah and Mr. J. Mishra, learned counsel for the petitioner, and Mr. S.C. Keyal, learned Standing Counsel, GST for the respondents. 2. In this writ petition instituted under Article 226 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer that there is an unreconciled ITC amounting to Rs. 19,51,41,111/- as reflected in the GSTR-9C for the Financial Year : 2017-2018 and the noticee-petitioner company is liable to reverse the wrongly availed and utilized ITC amounting to Rs. 19,51,41,111/- under Section 73[1] of the CGST Act, 2017 along with applicable interest under Section 50 of the CGST Act, 2017 and penalty under Section 73[9] of the CGST Act, 2017. The said notice has been issued finding discrepancy purportedly under Section 61 of the CGST Act, 2017. 5. The contention advanced on behalf of the petitioner is that provisions contained in Section 61 of the CGST Act, 2017 r/w Rule 99 of the CGST Rules, 2017 require the Proper Officer to scrutinize the return and related particulars furnished by the registered person to verify the correctness of the return with reference to the information available with him. In the event any discrepancy is noticed, the Proper Officer has to issue a notice to the registered person in FORM GST ASMT-10 informing him of such discrepancy and has to seek explanation thereto within the prescribed time period. On receipt of the notice, the registered person may accept the discrepancy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... GHY/2023/110 dated 11.12.2023 has submitted that the petitioner company was informed several times regarding the discrepancy vide Letters, dated 31.05.2022, dated 13.01.2023, dated 03.02.2023 dated 23.03.2023 respectively, by the authority viz. the Comptroller and Auditor General [CAG]. It has, however, been admitted that the Form GST ASMT-10 was not issued by the Range. He has contended that non-issuance of Form GST ASMT-10 does not result in violating the basic principles of natural justice since the impugned Damand-cum-Show Cause Notice has been issued to the petitioner company as the assessee and the same is in conformity with the principles of natural justice. Reliance is placed in the decisions of the Hon ble Supreme Court of India in Union of India vs. Polar Marmo Agglomerates Ltd., reported in 1997 [96] ELT 21 [SC], and Union of India and others vs. Coastal Container Transporters Association and others, reported in [2019] 20 SCC 446. 9. In response, Mr. Shah, learned Senior Counsel for the petitioner has submitted that the issues in this writ petition are not relatable to any disputed questions of fact but the issues are relatable to non-adherence to the statutory prescript ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... writ petition at the stage of show cause notice. It was found that there was a serious dispute with regard to classification of service and as such, the respondents ought to have responded to the show cause notice by placing materials in support of their stand instead of approaching the High Court questioning the show cause notice. In Magadh Sugar Energy Ltd.[supra], the High Court declined to entertain the writ petition on the ground that the dispute between the parties was factual in nature and interference was declined without observation that it would be appropriate that the dispute be adjudicated in terms of the statutory remedy. The Hon ble Supreme Court of India has observed that while the High Court would normally not exercise its writ jurisdiction under Article 226 of the Constitution of India if any effective and efficacious alternate remedy is available, the existence of an alternate remedy does not by itself bar the High Court from exercising its jurisdiction in certain contingencies. References have been made to the decisions in Whirlpool Corporation [supra] and Harbanslal Sahni [supra] to observe that there could be exceptions to the rule of alternate remedy where [a] ..... X X X X Extracts X X X X X X X X Extracts X X X X
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