9911796707
TMI Blog2021 (10) TMI 880X X X X Extracts X X X X X X X X Extracts X X X X ..... en urged to assail the show-cause notice :- (i) The Show Cause Notice (SCN) dated 7th June 2021 is vague; (ii) The SCN is without jurisdiction and (iii) Proceeding initiated without service of FORM GST-ASMT-10 is void ab-initio. 4. Learned counsel for the petitioner Mr. Kartik Kurmy has, in support of the grounds of challenge, made the following submissions. 5. That the impugned show-cause notice is vague and does not disclose the offence and contraventions as it is a mere mechanical reproduction of the provisions of Section 74 without striking of the irrelevant portions. It is thus incapable of any reply and does not fulfill the ingredients of a notice in the eyes of law. Petitioner would be denied opportunity to properly defend itself. It is, therefore, in violation of principles of natural justice. The essential requirements of proper notice is that it should specifically state charges which the noticee has to reply. In this regard reliance is placed on the decision of the Apex Court rendered in the case of Oryx Fisheries P. Ltd. Vs. Union of India reported in (2010) 13 SCC 427 (Para 24 to 27). 6. In support of the challenge to the summary to show-cause notice contained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 79 of the Act. Under the scheme of the Act, the self assessment can be interfered only in the manner provided under Section 61 which contemplates scrutiny of the returns. It further contemplates service of notice in Form GST ASMT-10 so that discrepancy, if any, pointed out in the return can be rectified by the assessee. Only if he fails to do so and the ingredients of either Section 73 or Section 74 are made out, the proceeding under either of the Sections can be initiated as the foundational facts do suggest. In the instant case no GST ASMT-10 Form was ever served on the petitioner. Contention of the respondents made through the counter affidavit to the contrary have been denied by way of para-11(ii) and (vi) of the rejoinder affidavit. No proof of such service of GST ASMT-10 has been enclosed to the counter affidavit. 7. Learned counsel for the petitioner further submits that alternative remedy is not a bar to invoke writ jurisdiction under Article 226/227 of the Constitution of India, if the party is complaining of breach of fundamental rights or breach of mandatory provisions under the Act or violation of principles of natural justice. It is submitted that the impugned show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve the notice in GST ASMT-10 before proceeding against the petitioner in accordance with law. 8. Learned counsel for the respondents has objected to the prayer and submissions made by the petitioner. It is submitted that writ jurisdiction is not to be ordinarily invoked in matters concerning imposition of tax. He has placed reliance on the case of CIT Vs. Chhabil Dass Agarwal reported in (2014) 1 SCC 603 para 11 and 16 as also in the case of United Bank of India Vs. Satyawati Tandon reported in (2010) 8 SCC 110 para-43 to 45. It is submitted that the petitioner has an efficacious alternative remedy of appeal after the proceedings are concluded and the order in original is passed. Learned counsel for the respondents has also reiterated the well recognized exceptions to the invocation of writ jurisdiction in the presence of an alternative remedy. It is further submitted that a notice ought not to be struck down, even if strictly not in the format, but if it contains in substance of the matter which a notice must contain. He has referred to the case of Bihar Plastic Industries Ltd. Vs. State of Bihar & Ors. reported in (2000) 117 STC 346 para-17. Learned counsel for the respondents h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned in table below. You may appear before the undersigned for personal hearing either in person or through authorized representative for representing your case on the date, time and venue, if mentioned in table below. Please note that besides tax, you are also liable to pay interest and penalty in accordance with the provisions of the Act. Please also note that if you make payment of tax stated above along with up to date interest and penalty @ 25% of tax within 30 days of the communication of this notice, then proceeding may be deemed to have been concluded. Details of personal hearing etc. Sr.No. Description Particulars 1 Section under which show cause notice/statement is issued 74 2 Date by which reply has to be submitted 23/06/2021 3 Date of personal hearing NA 4 Time of personal hearing NA 5 Venue where personal hearing will be held NA Demand details- (Amount in Rs.) Sr. No. Tax Rate (%) Turnover Tax Period From To Act POS (Place of supply Tax Interest Penalty Others Total 1 2 3 4 5 6 7 8 9 10 11 12 1 0 0.00 Jul 2020 Sep 2020 CGST NA 1,63,17,267.50 17,13,313.08 1,63,17, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eunder i.e. that the tax in question has not been paid or short paid or erroneously refunded or the ITC has been wrongly availed or utilized by reason of fraud or any willful misstatement or suppression of facts to evade tax. 14. A bare perusal of the impugned show-case notice creates a clear impression that it is a notice issued in a format without even striking out any irrelevant portions and without stating the contraventions committed by the petitioner i.e. whether its actuated by reason of fraud or any willful misstatement or suppression of facts in order to evade tax. Needless to say that the proceedings under Section 74 have a serious connotation as they allege punitive consequences on account of fraud or any willful misstatement or suppression of facts employed by the person chargeable with tax. In absence of clear charges which the person so alleged is required to answer, the noticee is bound to be denied proper opportunity to defend itself. This would entail violation of principles of natural justice which is a well-recognized exception for invocation of writ jurisdiction despite availability of alternative remedy. In this regard, it is profitable to quote the opinion of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch charges are based. 16. It is also true that acts of fraud or suppression are to be specifically pleaded so that it is clear and explicit to the noticee to reply thereto effectively [See Larsen & Toubro Ltd. Vs. CCE, (2007) 9 SCC 617 (para 14)]. Further in the case of CCE Vs. Brindavan Beverages (P) Ltd. reported in (2007) 5 SCC 388 relied upon by the petitioner, the Apex Court at para-14 of the judgment has held that if the allegations in the show-cause notice are not specific and are on the contrary, vague, lack details and/or unintelligible i.e. its sufficient to hold that the noticee was not given proper opportunity to meet the allegations indicated in the show-cause notice. We do not agree with the contention of the respondent that the notice ought not to be struck down if in substance it contains the matters which a notice must contain. In order to proceed under the provisions of Section 74 of the Act, the specific ingredients enumerated thereunder have to be clearly asserted in the notice so that the noticee has an opportunity to explain and defend himself. 17. As observed herein above, the impugned notice completely lacks in fulfilling the ingredients of a proper show-c ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
