2023 (7) TMI 1060 - HC - VAT and Sales Tax

Revision of remand assessment order - vires of Section 174 (2) (3) of Haryana Goods and Services Tax Act, 2017 - effective and alternative remedy of filing reply not effected - opportunity to file appeal against the order passed by the revisional authority before the appropriate forum not provided - HELD THAT - It is very much explicit that the High Court can entertain a writ petition even though the alternative remedy has not been availed if there is pure question of law and the matter can be decided without going into disputed questions of fact, if the proceedings initiated by the assessing authority/any other revenue authority are without jurisdiction or, if there is violation of principles of natural justice or if the writ petitioner seeks enforcement of any fundamental right. The main thrust of argument raised by the petitioner for assailing the impugned show cause notice is that it was illegal and without jurisdiction and was liable to be quashed as it was issued in violation of Section 29 (2) (e) of the HVAT Act by respondent No.2 who would require it to produce documents and books of accounts pertaining to the A.Y. 2011-12 while conducting proceedings on this notice though the petitioner was not required to maintain and preserve such documents and books of account beyond a period of eight years from close of relevant assessment year. The argument so raised by the petitioner appears to be attractive but on a careful perusal of the record, the same lacks any merit. When the respondent No.2 in the impugned notice has not sought production of the account books for the relevant assessment year and when the respondents have rather clarified that they would not be needing production of the same at the stage of determining the impugned show cause notice, the impugned notice could not be stated to be illegal or without jurisdiction merely because it was issued after expiry of period of eight years from the closing of A.Y. 2011-12. In the present set of circumstances, any finding by this Court at this stage is likely to be prejudicial to the interest of either of the parties to this petition. The issues raised in the show cause notice are required to be determined by the respondent No.2 at the first instance. The matter has to be determined in the light of the submissions that may be advanced by the petitioner as well as the revenue in course of such determination. The question as to whether the assessment order is liable to be revised is yet to be determined by the revisional authority. In such circumstances, the writ petition does not deserve to be allowed. Consequently, without expressing any opinion on the merit of the issues raised in the course of the arguments, this petition is dismissed but the petitioner is allowed, a further period of 30 days from today to file reply to the impugned show cause notice and to participate in the proceedings.

Summary

Issues Involved:
1. Validity of the show cause notice dated 30.12.2021.
2. Challenge to the vires of Section 174 (2) (3) of the Haryana Goods and Services Tax Act, 2017.
3. Jurisdictional and procedural aspects under Section 34 of the Haryana Value Added Tax Act, 2003.

Summary:

1. Validity of the Show Cause Notice Dated 30.12.2021:
The petitioner challenged the show cause notice issued under Section 34 of the HVAT Act and Section 9 (2) of the CST Act, alleging illegalities in the remand assessment order dated 02.08.2017. The petitioner argued that the notice was issued in violation of principles of natural justice and was time-barred as the period of eight years for maintaining account books had expired on 31.03.2020. The respondents contended that the notice was valid, issued within jurisdiction, and within the six-year limitation period for revising the assessment order.

2. Challenge to the Vires of Section 174 (2) (3) of the HGST Act:
The petitioner initially challenged the vires of Section 174 (2) (3) of the HGST Act but later did not press this ground during arguments.

3. Jurisdictional and Procedural Aspects Under Section 34 of the HVAT Act:
The petitioner argued that the revisional authority (respondent No.2) could not re-examine the books of account beyond the statutory period of eight years and that the impugned notice was without jurisdiction. The respondents countered that the revisional authority was empowered to revise the order within six years and did not require new documents for the revision process. The court held that the impugned notice was not time-barred and that the petitioner was obligated to preserve account books until the completion of proceedings under the HVAT Act.

Conclusion:
The court dismissed the writ petition, stating that the petitioner had not exhausted alternative remedies and that the revisional authority was within its jurisdiction to issue the show cause notice. The petitioner was granted 30 days to file a reply to the notice and participate in the proceedings. The court emphasized that the revisional authority should independently adjudicate the matter based on the submissions of both parties.