9911796707
TMI Blog2022 (5) TMI 1137X X X X Extracts X X X X X X X X Extracts X X X X ..... use notice dated 21.05.2020 has been issued to several other entities/persons, including the petitioner proprietorship concern, and its authorised signatory, namely one, Mr Tarun Gulati. The relevant part of the said show cause notice is extracted hereafter: "13.55. M/s Gulati Enterprises, 316, FIE Patparganj Industrial Area, Delhi (GSTIN 07AAGPK8981Q1ZQ) is hereby called upon to show cause to the Additional / Joint Commissioner, CGST Commissionerate, Delhi East, C.R. Building, I.P. Estate, New Delhi, within 30 days of the receipt of this Show Cause Notice as to why - TAX OF IGST of Rs. 58,77,631/-, CGST of Rs. 53,57,374/-, SGST of Rs. 53,57,374/- & Cess of Rs. 5,44,45,143/- on goods cleared clandestinely should not be demanded and reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f of the petitioner, in support of this plea, submits that the mandatory requirement of pre-show cause notice consultation, as provided in the aforementioned Rules, has to be read with Section 74 of the CGST Act, 2017 [in short 'the CGST Act']. 4.1 Mr. Bhatia contends that, as a matter of fact, the regime after the CGST Act and Rules kicked in i.e., from 01.07.2017 had left no scope for the respondents/revenue to move away from the requirement of a pre-show cause consultation notice. 4.2. In this behalf, Mr. Bhatia has also referred to a statutory form i.e., GST DRC-01A. Mr. Bhatia contends that a brief perusal of the form i.e., GST DRC-01A, would show that the respondents/revenue were required to not only crystalize the tax and cess comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 8. A coordinate bench of this Court in the judgment rendered on 05.04.2021, passed in W.P.(C.) 5766/2019, titled Back Office IT Solutions Pvt. Ltd. v. Union of India & Ors. [2021 SCC OnLine Del 2742] dealt with a somewhat similar situation. The Court was called upon to render a decision in the context of a master circular dated 10.03.2017, which also had a provision for pre-show cause notice consultation. The provision for preshow cause notice consultation was captured in paragraph 5.0 of the aforementioned master circular. 8.1. In that case, amongst others, one of the defences that the revenue had taken was that the regime of pre-show cause notice consultation would not apply, where it was a case of prevention, and/or where the show ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d extract, taken from the 2017 Master Circular, would show that respondent no. 3 has made pre-show cause notice consultation by the Principal Commissioner/Commissioner before issuance of a show cause notice [in cases involving demands concerning duty above Rs.50,00,000/-] mandatory in line with the provisions of the 2015 instruction." 9. As noted right in the beginning of the narration of facts, after 09.10.2019, the legislature has, in our view, removed the clutter of exceptions which were obtaining in the aforementioned master circular by simply stating the following in sub-rule (1A) of Rule 142 (unamended) of the 2017 Rules : "142... (1A) The proper officer shall, before service of notice to the person chargeable with tax, interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portal maintained by the respondents/revenue, pre-show cause notice consultation notice could not have been issued. As is rightly argued by Mr Bhatia, the respondents/revenue could have made an attempt by serving on the petitioner, albeit manually, the very same statutory form. 11.2. The other argument advanced by Mr. Singh that because the authorised signatory of the petitioner i.e., Mr Tarun Gulati had made a voluntary statement, the requirement of issuing a pre- show cause consultation notice stood satisfied, as all that the respondents/revenue would have said in the pre-show cause consultation notice was put to the authorised signatory petitioner proprietorship concern at the time of recording his statement, is untenable. This very ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the captioned writ petitions dated 11.04.2018 (W.P.(C) 12653/2019) & 24.04.2018 (W.P.(C) 7842/2020) were issued by an officer of the rank of Additional Director General. Therefore, it cannot be said that voluntary statements made by the officials of the petitioners before the Senior Intelligence Officer would constitute a preshow cause notice consultation, as stipulated under paragraph 5 of the 2017 Master Circular." 12. In view of what is observed hereinabove in Omaxe New Chandigarh Developers Pvt. Ltd., the result can be no different in this case as well. 12.1. A voluntary statement cannot substitute a statutory notice, which is contemplated under Rule 142(1A) of the 2017 Rules. 13. Accordingly, the prayer made in the writ petition is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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