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2024 (5) TMI 1213 - HC - GSTMaintainability of petition - availability of an alternative and efficacious statutory remedy - Non-issuance of the summary of notices / orders electronically on the portal - non-uploading of the forms FORM GST DRC-01 and FORM GST DRC-07 - Issuance of Demand-cum-Show Cause Notice and Order-in-Original by different authorities Maintainability of petition - availability of an alternative and efficacious statutory remedy - HELD THAT - It is settled that availability of an alternative remedy does not always operate as a bar to the maintainability of a writ petition under Article 226 of the Constitution of India. Even if a writ petition is maintainable, the High Court in its extra-ordinary and discretionary jurisdiction may not entertain a writ petition - Availability of an alternative remedy does not operate as an absolute bar to the maintainability of a writ petition. It has, thus, been observed that entertainability and maintainability of a writ petition are distinct concepts. While an objection to the maintainability goes to the root of the matter, the question of entertainability is entirely within the realm of discretion of the High Courts. Non-issuance of summary of notices/orders electronically on the portal - HELD THAT - Service of the notice or the order, as the case may be, under Section 73, CGST Act, 2017, by giving or tendering it directly or by a messenger to the taxable person or the addressee, etc. in the manner, is a statutorily permissible mode of service. By making the notice or the order available on the common portal is another statutorily permissible mode of service - The duty is cast on the proper officer to issue notice to the person concerned of the proposed action to be taken. The notice is not in the nature of a public notice nor any person other than the person against whom the proceedings are initiated has any right for such a notice. Thus, this right of notice being personal to the person concerned, the same can be waived by that person. Non-uploading of the forms FORM GST DRC-01 and FORM GST DRC-07 - HELD THAT - In the considered view of this Court, by not whispering anything in its Reply to the Show Cause Notice, submitted on 04.12.2023, by the petitioner company, it had, by implication, waived the requirement of uploading of the notice electronically on the portal. It is well settled in law that ordinarily, a mandatory provision of law requires strict compliance but there are situations / exceptions where even if a provision is mandatory, non-compliance would not result in nullification of the act. For example, if a certain requirement or condition is provided in a statute for the benefit or interest of a particular person, the same can be waived by him if no public interest is involved. The ultimate result would be valid even if the requirement or condition is not performed - Service of the notice or the order, as the case may be, under Section 73, CGST Act, 2017, by giving or tendering it directly or by a messenger to the taxable person or the addressee, etc. in the manner, is a statutorily permissible mode of service. By making the notice or the order available on the common portal is another statutorily permissible mode of service. Issuance of Demand-cum-Show Cause Notice and Order-in-Original by different authorities - HELD THAT - As a statutory appeal is considered to be continuation of the original proceedings, determination of disputed questions of fact would fall within the province of the appellate authority, as the appellate authority has the jurisdiction to decide both on the facts as well as in law - the Demand-cum-Show Cause Notice had specifically indicated to the petitioner-assessee before whom it was called upon to show cause. When in such situation, an Adjudicating Authority was required to adjudicate on the basis of the grounds mentioned in the Demand-cum-Show Cause Notice and the grounds urged in the written Reply to the Demand-cum-Show Cause Notice, the contention raised that one authority had issued the Demand-cum-Show Cause Notice and another authority had passed the Order-in-Original is not to be accepted, more so, when the Order-in-Original has addressed on the grounds raised in the Demand-cum- Show Cause Notice. This Court is of the unhesitant view that the petitioner has not been able to make out any exceptional case to interfere with the Demand-cum-Show Cause Notice dated 22.09.2023 and the Order-in-Original dated 14.12.2023 in the extra-ordinary and discretionary jurisdiction under Article 226 of the Constitution of India. In such view of the matter, this Court has found that the instant writ petition is not to be entertained - Petition dismissed.
Issues Involved:
1. Non-compliance of statutory prescriptions in the CGST Act, 2017 and CGST Rules, 2017. 2. Issuance of Demand-cum-Show Cause Notice by one authority and passing of Order-in-Original by another. 3. Non-affording of personal hearing to the petitioner. 4. Availability of an alternative statutory remedy. Summary: Non-compliance of statutory prescriptions: The petitioner challenged the Demand-cum-Show Cause Notice dated 22.09.2023 and Order-in-Original dated 14.12.2023 on grounds of non-compliance with Rule 142 of the CGST Rules, 2017. The petitioner argued that summaries of the Demand-cum-Show Cause Notice and Order-in-Original were not uploaded on the portal in FORM GST DRC-01 and FORM GST DRC-07 respectively, violating statutory prescriptions. However, the court observed that the petitioner had received physical copies and did not raise this issue in its Reply to the Show Cause Notice, implying waiver of this requirement. The court held that non-uploading did not prejudice the petitioner and was not an exceptional situation warranting writ jurisdiction. Issuance of Demand-cum-Show Cause Notice by one authority and passing of Order-in-Original by another: The petitioner contended that the Demand-cum-Show Cause Notice was issued by one authority and the Order-in-Original was passed by another, violating principles of natural justice. The court noted that the petitioner was specifically called to show cause before the Assistant Commissioner, Central GST, Silchar Division, and failed to attend scheduled personal hearings. The court concluded that the petitioner had left the case to be decided based on its written Reply and that this did not violate the principle of "one who hears must decide." Non-affording of personal hearing: The petitioner claimed no personal hearing was afforded before passing the Order-in-Original. The court found that multiple dates for personal hearings were fixed, but the petitioner failed to attend. The court held that the petitioner had the opportunity but chose not to avail it, thus no violation of natural justice occurred. Availability of an alternative statutory remedy: The respondent argued that the writ petition was not maintainable due to the availability of an alternative statutory remedy of appeal u/s 107 of the CGST Act, 2017. The court acknowledged that while the writ petition is maintainable, it should not be entertained due to the availability of an efficacious alternative remedy. The court emphasized that the petitioner could raise all contentions before the statutory appellate authority and that the time spent in the writ petition would be considered regarding limitation. Conclusion: The court dismissed the writ petition, holding that the petitioner did not make out an exceptional case for interference in the extra-ordinary jurisdiction under Article 226 of the Constitution of India. The petitioner was advised to pursue the statutory remedy of appeal u/s 107 of the CGST Act, 2017.
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