2024 (10) TMI 1024 - HC - GST

Challenge to order passed under Section 73 of the WBGST/CGST Act, 2017 - tax period from April 2018 to March 2019 - HELD THAT - Taking note of the response filed by the petitioners on 3rd December, 2023 in respect of the scrutiny period July, 2017 to March, 2018, it is difficult to accept the contention of the petitioners that the petitioners consultant remained unreachable or was ill for reasons whereof, the petitioners were unaware with regard to the impugned show-cause notice dated 5th December, 2023. The petitioner no.1 is not a small business entity but a private limited company, having corporate entity. Thus, the petitioners cannot feign ignorance of the pre show-cause as well as the show-cause notice by contending that its consultant was unwell or remained unreachable. The petitioners having not responded to the pre-show-cause notice as well as the show-cause notice, there being no proper explanation for having not responded to the same and further taking note of the efficacious alternative remedy available to the petitioner in the form of an appeal under section 107 of the said Act, the petitioners are not entitled to invoke the extraordinary writ jurisdiction to this Court for adjudication of its case on merits on the basis of its stand taken for the first time before this Court. This writ petition thus, cannot succeed and is accordingly dismissed.

Summary

Issues:
Challenging an order under Section 73 of the WBGST/CGST Act, 2017 for the tax period from April 2018 to March 2019.

Analysis:
The petitioners filed a writ petition challenging an order passed under Section 73 of the WBGST/CGST Act, 2017 for the tax period from April 2018 to March 2019. The petitioners argued that a previous show-cause notice for the tax period July 2017 to March 2018 had been dropped, and the issues were similar. They relied on a Supreme Court judgment to support their argument that a previously adjudicated issue cannot be reopened without a change in circumstances. The petitioners requested the court to set aside the order or remand the matter for fresh adjudication based on the previous decision. However, the respondents contended that the petitioners did not respond to the pre-show-cause notice and the subsequent show-cause notice, and they have an alternative remedy of appeal. The respondents argued against the petitioners adjudicating the case on merits before the court.

The court noted that the petitioners were aggrieved by the determination made by the proper officer on 8th April 2024. The petitioners had not responded to the pre-show-cause notice issued on 8th October 2023 and the subsequent show-cause notice on 5th December 2023. The petitioners claimed that their consultant was unwell and unreachable, leading to their unawareness of the notices. However, the court found that the petitioners had responded to a show-cause notice dated 30th August 2023 for the period July 2017 to March 2018, but they did not disclose the consultant's name or provide evidence of the consultant's illness. The court rejected the petitioners' argument of ignorance due to the consultant's unavailability, especially considering the petitioners' corporate entity status.

The court concluded that the petitioners, having not responded to the notices and having an alternative remedy of appeal under Section 107 of the said Act, were not entitled to invoke the writ jurisdiction for adjudication on merits. Therefore, the writ petition was dismissed, with the petitioners advised to apply before the appellate authority if desired. The court also directed the petitioners to file an appeal within 15 days, and the appellate authority was instructed to expedite the hearing and disposal of the appeal within eight weeks.

In summary, the court dismissed the writ petition challenging the order under the WBGST/CGST Act, 2017 for the tax period from April 2018 to March 2019. The petitioners' failure to respond to the notices, lack of proper explanation, and availability of an alternative remedy of appeal led the court to reject their plea for adjudication on merits through the writ jurisdiction. The court directed the petitioners to pursue the appeal process and instructed the appellate authority to expedite the hearing and disposal of the appeal.