2021 (11) TMI 1030 - HC - GST

Lack of jurisdiction in issuance of the impugned notice - Whether notice suffers from any inherent defect or jurisdiction? - HELD THAT - No proceedings have been initiated against M/S Bhardwaj Unibuild Pvt Ltd. Therefore it cannot be said that the notice suffers from any inherent defect or jurisdiction. Clearly the issuing authority namely Assistant Commissioner is the proper officer with respect to the noticee M/s Bhardwaj Constructions. Other objection being raised by the learned counsel for the petitioners arising from the business transfer w.e.f. dated 30.09.2018 is factual. It may be examined by the adjudication proceedings. It is also found that the notice has been issued solely of the dictates of the higher authority. Though reference has been made to the communication received from the Additional Commissioner we provide that in the event of petitioner no.2 participating in the proceeding and filling its objection the respondent no.2 shall make an independent application of mind to the material on record and the objections raised by the petitioners and pass appropriate and reasoned order without being influenced by opinion if any. Though the show cause notice is not happily worded inasmuch as it does appear to suggest on first blush that the demand has been confirmed yet it is again provided that the demand may be confirmed only after considering the petitioners objections and meeting the same by a reasoned order. Respondent no.2 may also take care in future in wording such show cause notices appropriately - Petition disposed off.

Summary

Issues:
Challenge to impugned notice under Section 73(1) of the UPGST Act, 2017 on grounds of proper officer jurisdiction, independent application of mind, and prejudgment of tax demand.

Analysis:
The petitioners, M/S Bhardwaj Unibuild Pvt Ltd and M/s Bhardwaj Constructions, challenged the notice issued to M/s Bhardwaj Constructions under Section 73(1) of the UPGST Act, 2017. The first submission was that the Assistant Commissioner, Sector-2, Basti, was not the proper officer of M/S Bhardwaj Unibuild Pvt Ltd due to a business transfer on 30.9.2018. The second submission was that the notice was issued under the dictates of a superior officer, not independently. The third objection was that the Assistant Commissioner prejudged the issue and raised the tax demand prematurely, rendering any reply or hearing futile.

The Revenue's counsel opposed the petition, arguing that the notice was valid and within jurisdiction. They contended that the issuing officer had jurisdiction over M/s Bhardwaj Constructions and that the business transfer issue was a disputed fact for adjudication. They also refuted the claim of issuing the notice under superior officer instructions and emphasized the need to hear petitioner no. 2 before confirming the demand specified in the notice.

The High Court found no grounds to interfere with the petition. Noting that no proceedings had been initiated against M/S Bhardwaj Unibuild Pvt Ltd, the Court held that the notice did not lack inherent jurisdiction. The Assistant Commissioner was deemed the proper officer for M/s Bhardwaj Constructions. The Court acknowledged the factual nature of the business transfer issue and directed its examination in adjudication proceedings. It also clarified that the notice was not solely based on superior officer directions and instructed an independent application of mind by respondent no. 2. The Court highlighted the need for a reasoned order after considering the petitioners' objections and advised caution in wording future show cause notices appropriately.

In conclusion, the writ petition was disposed of with the above observations, maintaining the validity of the notice while emphasizing the importance of independent decision-making and proper procedure in such matters.