Appellate Authority cannot pass Order beyond the allegations made in Show Cause Notice

[CA Bimal Jain]

The Hon’ble Calcutta High Court in EARTHMARK TRADERS VERSUS JOINT COMMISSIONER, STATE TAX, CHINABAZAR & RAJAKATRA CHARGE & ANR. - 2023 (7) TMI 145 - CALCUTTA HIGH COURT set aside the order passed by Appellate Authority and held that the Appellate Authority cannot travel beyond the allegations made in the Show Cause Notice (“the SCN”).

Facts:

M/s Earthmark traders (“the Appellant”) exported goods and claimed refund of Input Tax Credit (“ITC”). The Revenue Department inspected the premises of the Appellant on August 18, 2021.

Subsequently, issued a Show Cause Notice dated August 28, 2021 ("the Impugned SCN") demanding back erroneous refunded of ITC claimed by the Appellant. However, the Impugned SCN was silent on the facts and regarding the documents to be submitted by the Appellant.

Thereafter, a Memo dated January 27, 2022 (“the Memo”) was communicated to the Appellant in which various allegations were placed and the Appellant was directed to produce corroborative documents. The Appellant filed the reply of the Memo vide letter dated April 26, 2022 and produced documents.

Subsequently, on September 14,2021 the Adjudicating Authority passed the final order (“the Impugned Order”).

Aggrieved with the Impugned Order, the Appellant filed an appeal before the Joint Commissioner (“the Respondent”) who dismissed the appeal on the ground that the Appellant has not proved the claim of export of goods.

Aggrieved by the Order of the Appellate Authority the Appellant filed this  Writ before the Hon’ble Calcutta High court.

The Single Judge bench vide EARTHMARK TRADERS VERSUS JOINT COMMISSIONER, STATE TAX, CHINABAZAR & RAJAKATRA CHARGE & ANR. - 2023 (5) TMI 1234 - CALCUTTA HIGH COURT declined to grant interim order in the writ petition.

Aggrieved by the order of the Single judge bench the Appellant filed an intra-court appeal.

Issue:

Whether the Appellate Authority can issue order beyond the allegations mentioned in the SCN?

Held:

The Hon’ble Calcutta High Court in EARTHMARK TRADERS VERSUS JOINT COMMISSIONER, STATE TAX, CHINABAZAR & RAJAKATRA CHARGE & ANR. - 2023 (7) TMI 145 - CALCUTTA HIGH COURT held as under:

• Observed that, the Appellant Authority will take into account the complete submission made by the Appellant, including the documents submitted in response to the Memo.
• Noted that, the Appellant Authority will provide the Appellant with an opportunity to provide further clarification regarding the allegations stated in the Impugned SCN and submit additional supporting documents and a chance for a personal hearing will be granted to the authorized representative of the Appellant.
• Held that, Appellate authority should not have travelled beyond the allegation of the SCN as, the SCN itself is defective on account of non-consideration of the submissions made by the Appellant to the Memo.
• The Impugned Order is set aside. The matter shall stand remitted to the Adjudicating Authority.

(Author can be reached at [email protected])