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2024 (6) TMI 952 - HC - GSTMaintainability of petition - availability of alternative remedy U/s 30 of GST Act - Cancellation of GST registration of the petitioner - violation of principles of natural justice and violative of Articles 19 and 21 of the Constitution of India - pivotal argument of petitioner is that the petitioner never indulged in bogus purchases or supplies to accommodate his suppliers to claim ITC fraudulently. HELD THAT - Thus Hon ble Apex Court in WHIRLPOOL CORPORATION VERSUS REGISTRAR OF TRADE MARKS MUMBAI ORS. 1998 (10) TMI 510 - SUPREME COURT held that in certain contingencies viz. when writ petition is filed for enforcement of fundamental rights or where there has been a violation of principles of natural justice or when the proceedings impugned are wholly without jurisdiction or the vires of an act is challenged the writ petition could be maintainable in spite of availability of alternative remed. In the instant case the petitioner banks upon the violation of principles of natural justice to maintain the writ petition. In this context a perusal of the show cause notice dated 23.06.2023 shows that the 1st respondent has given required particulars of the non-existent tax payers from whom the petitioner allegedly obtained bogus tax invoices. Therefore there are no venom in the contention of the petitioner that the show cause notice is bereft of required particulars and thereby the principles of natural justice were violated. Admittedly the petitioner has alternative remedy to challenge the impugned order which he did not avail. Therefore no order is deserved in the writ petition. However considering that the petitioner s registration has been cancelled and thereby he cannot continue his business activities it is deemed apposite to give an opportunity to the petitioner to challenge the impugned order either by way of filing a petition U/s 30 of the GST Act or to file an appeal within a reasonable time. The writ petition is dismissed.
Issues involved:
The issues involved in the judgment are cancellation of registration under CGST/APGST Act, 2017, violation of principles of natural justice, and maintainability of writ petition when alternative remedy is available. Cancellation of Registration: The petitioner, a proprietary concern engaged in the business of purchase and sale of iron scrap, challenged the action of the 1st respondent in cancelling their registration under CGST/APGST Act, 2017. The petitioner contended that the allegations of fake invoices and claim of ITC without movement of goods were baseless and contrary to the Assessment Order. The petitioner argued that without inward receipt of goods, there cannot be outward sale of goods. The petitioner also highlighted that the reports issued by GST authorities, which were the basis for the show cause notice, were not supplied to them. The petitioner's counsel vehemently argued that principles of natural justice were violated. However, the Government Pleader for Commercial Taxes argued that the show cause notice contained particulars of non-existent dealers from whom the petitioner obtained bogus invoices, and therefore, the petitioner cannot claim non-supply of material and violation of principles of natural justice. Violation of Principles of Natural Justice: The petitioner raised objections disputing the allegations made in the show cause notice and requested to drop the proposed action. The petitioner argued that the impugned order cancelling their registration was passed on untenable grounds and also on grounds not raised in the show cause notice. The petitioner contended that the alleged reports issued by GST authorities, which formed the basis for the show cause notice, were not supplied to them, thus violating principles of natural justice. The petitioner claimed that they were not properly advised and could not file a petition u/s 30 of CGST Act, 2017 for revocation of registration. The petitioner's counsel argued that the petitioner never indulged in bogus purchases or supplies to accommodate suppliers fraudulently claiming ITC. Maintainability of Writ Petition: The Government Pleader for Commercial Taxes argued that the writ petition was not maintainable as the petitioner had alternative remedies available, such as filing a petition u/s 30 of APGST Act for revocation of cancellation or appealing against the impugned order u/s 107 of APGST Act. The Government Pleader contended that without pursuing these alternative reliefs, the petitioner could not file the writ petition. The court considered the maintainability of the writ petition in light of the availability of alternative remedies. The court referred to the Apex Court's observation that the writ petition could be maintainable in certain contingencies, including a violation of principles of natural justice. The court found that the show cause notice contained required particulars of non-existent tax payers, and therefore, the principles of natural justice were not violated. The court dismissed the writ petition but provided an opportunity for the petitioner to challenge the impugned order by filing an application u/s 30 of the GST Act or by filing an appeal within a reasonable time.
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