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TMI Blog2025 (5) TMI 457X X X X Extracts X X X X X X X X Extracts X X X X ..... ngh, Senior SC Mr. Shivaditya Dhari Sinha, Advocate For the State : Mr. Vikash Kumar, SC-11 JUDGMENT ( Per : HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD ) Heard Mr. D.V. Pathy, learned Senior Counsel assisted by Mr. Sadashiv Tiwari, learned counsel for the petitioner, Dr. K.N. Singh, learned Additional Solicitor General assisted by Mr. Anshuman Singh, learned Senior Standing Counsel for the CGST and CX and Mr. Vikash Kumar, learned Standing Counsel-11 for the State. 2. In these two writ applications, the only difference is with respect to the assessment year, otherwise the impugned order in both the writ applications remains the same. 3. In CWJC No. 1898 of 2023 which has been taken up for purpose of argument and reference of the materials on the record, the writ petitioner has prayed for the following reliefs:- "i) the order dated 28.06.2022 (as contained in Annexure-5 Series) passed by the respondent no. 2 for the period 2017-18 under Section 74(9) of the Bihar Goods and Services Tax Act, 2005 (hereinafter called the Act) in contravention to Section 6(2) of the Central Goods and Services Tax Act, 2005 be quashed. ii) the respondent no. 2 be directed not to resort t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in from initiating another proceeding in the same matter. Putting reliance upon the circular of the Central Board of Indirect Taxes and Customs (in short 'CBIC') in the matter of initiation of intelligence based enforcement action vide Circle No. D.O. F.No. CBEC/20/43/01/2017-GST (Pt.) dated 05th October, 2018 (Annexure- '6'), learned Senior Counsel submits that the authority which initiates action on the basis of the intelligence information is empowered to complete the entire process of investigation, issuance of SCN, adjudication and recovery, filing of appeal etc. arising out of such action. It is his submission that the impugned order as contained in Annexure- '5' has been passed by the Assistant Commissioner of State Tax (Respondent No. 2) in complete violation and disregard to the directions contained in the circular of the CBIC. 7. Learned Senior Counsel has placed before this Court Section 6(2)(b) of the CGST/BGST Act, 2017 to submit that according to this provision, where a Proper Officer under the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act has initiated any proceeding on a subject matter, no proceeding shall be initiated by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst him. Submissions on behalf of the State 11. On the other hand, Mr. Vikash Kumar, learned Standing Counsel-11 for the State submits that on bare perusal of the order passed by the State Tax Authority, it would appear that the said order came to be passed while exercising power under Section 61(1) of the BGST Act read with Rule 99(1). Referring to Section 61 of the BGST Act, learned SC-11 submits that Section 61 would fall under Chapter XII of the CGST/BGST Act, 2017. Chapter XII deals with the assessment. Section 61 of the BGST Act talks of scrutiny of returns. In course of scrutiny of returns, the Proper Officer is empowered to verify the correctness of the return. In case of any discrepancies noticed by him, he may seek explanation from the registered person. Under sub-section (3) of Section 61 of the BGST Act, in case, no satisfactory explanation is furnished within a period of 30 days of being informed by the Proper Officer or such further period as may be permitted by him or where the registered person, after accepting the discrepancies fails to take the corrective measure in his return for the month in which the discrepancy is accepted, the Proper Officer may initiate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drawn towards the statement present in the impugned order (Annexure- '5') wherein it is recorded that the petitioner was served with a notice under Section 74 of the BGST Act, 2017 and he was given a demandcum- show cause notice in GST DRC-01 dated 24.05.2022 but the petitioner did not submit any response to the same in GST DRC- 06. At the same time, the petitioner did not deposit any amount. It is submitted that so far as the judgment in the case of Tata Projects Limited on which reliance has been placed by learned Senior Counsel for the petitioner is concerned, it would be evident on reading paragraph '8' of the said order that in the said case, the impugned order did not mention that show cause notice was issued to the petitioner and that the petitioner had failed to furnish a reply. The learned co-ordinate Bench, therefore, held that in absence of such material, one has to draw inference that impugned order is in violation of sub-section (4) of Section 75 of the CGST Act, 2017. The case is clearly distinguishable from the present one. Submissions on behalf of the CGST & CX 15. Dr. K.N. Singh, learned ASG has represented the CGST & CX. It is submitted that on the date the impu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xure- '5' is the investigation and the materials which were sought for by issuing summons contained in Annexures- '1', '2' and '4' by the central agency cannot be accepted on the face of the statement present in Annexure- '5' which have not been contested. 20. This Court further finds that a demand-cum-show cause notice was issued to the petitioner even under Section 74 of the CGST Act read with Rule 142 of the Rules framed thereunder. Section 74 of the CGST Act talks of determination of tax not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilized by reason of fraud or any willful-misstatement or suppression of facts. According to sub-section (1), wherever it appears to the Proper Officer that there is any wrongful availment of input tax credit or where the input tax credit has been utilized by reason of fraud or any willful statement or suppression of facts to evade tax, he shall serve notice on the person chargeable with tax which has not been so paid or which has been so short paid or to whom the refund has erroneously been made or who has wrongly availed or utilized input tax credit, requiring him to show cause as to why he should not pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 74 but the petitioner did not respond to the said notice. The petitioner did not turn up on the date fixed in the matter for personal hearing. This being the position, we are of the considered opinion that there is no violation of principles of natural justice much less any violation of the statutory provisions as contained in sub-section (4) of Section 75 of the CGST/ BGST Act, 2017. 24. Having regard to the aforementioned discussions, we find no jurisdictional error on the part of the State Authority (Respondent No. 2) in passing of the impugned order. The writ application is not fit to be entertained. 25. The petitioner, if so advised, may avail alternative statutory remedy, if any, available to the petitioner in accordance with law. 26. At this stage Mr. D.V. Pathy, learned Senior Counsel submits that he would prefer a statutory appeal within a period of two weeks from the date of receipt/communication of a copy of this order but in that case, if a question of limitation arises, this Court may direct the Appellate Authority to condone the delay. 27. Mr. Vikash Kumar, learned Standing Counsel-11, however, submits that in the present case, the petitioner has moved this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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