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TMI Blog2023 (12) TMI 943X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Counsel, GST for the respondents. 2. In this writ petition instituted under Article 226 of the Constitution of India, assail is made by the petitioner company to a Demand-cum-Show Cause Notice bearing E-File no. GEXCOM/ADJN/GST/ADC/297/2023 dated 05.09.2023 [Annexure-2] issued by the respondent no. 2 under Section 73[1] of the Central Goods and Services [CGST] Act, 2017, whereby, the petitioner company has been called upon to show cause as to why [i] Input Tax Credit [ITC] wrongly availed amounting to Rs. 19,51,41,111/- [including Rs. 3,96,96,249.60/- [CGST], Rs. 3,94,92,435.50 [SGST], Rs. 11,58,62,136.13/- [IGST] & Rs. 90,290/- [Cess]] for the Financial Year : 2017-2018; in terms of Section 73[1] of the CGST Act, 2017 r/w Notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith interest payable thereon under section 50 and a penalty leviable under the provisions of this Act or the rules made thereunder. 4. As per the Demand-cum-Show Cause Notice dated 05.09.2023, it has appeared to the respondent no. 2 as the Proper Officer that there is an unreconciled ITC amounting to Rs. 19,51,41,111/- as reflected in the GSTR-9C for the Financial Year : 2017-2018 and the noticee-petitioner company is liable to reverse the wrongly availed and utilized ITC amounting to Rs. 19,51,41,111/- under Section 73[1] of the CGST Act, 2017 along with applicable interest under Section 50 of the CGST Act, 2017 and penalty under Section 73[9] of the CGST Act, 2017. The said notice has been issued finding discrepancy purportedly under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 017. 6. It is the further contention of the petitioner that as per the impugned Demand-cum-Show Cause Notice, the alleged discrepancy is that the petitioner company did not submit information in Table 14 in FORM GSTR-9C and as a result, there was a mismatch with the details furnished in FORM GSTR-9. FORM GSTR-9C with Table 14 contains details as to 'Reconciliation of ITC declared in annual return [GSTR-9] with ITC availed on expenses as per Audited Annual Financial Statement or books of account'. By Notification no. 56/2019-Central Tax dated 14.11.2019, Notification no. 79/2020-Central Tax dated 15.10.2020, Notification no. 30/2021-Central Tax dated 30.07.2021, Notification no. 14/2022- Central Tax dated 05.07.2022 & Notification no. 38/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he principles of natural justice. Reliance is placed in the decisions of the Hon'ble Supreme Court of India in Union of India vs. Polar Marmo Agglomerates Ltd., reported in 1997 [96] ELT 21 [SC], and Union of India and others vs. Coastal Container Transporters Association and others, reported in [2019] 20 SCC 446. 9. In response, Mr. Shah, learned Senior Counsel for the petitioner has submitted that the issues in this writ petition are not relatable to any disputed questions of fact but the issues are relatable to non-adherence to the statutory prescription prescribed in the CGST Act, 2017 and the CGST Rules, 2017. The issues raised are whether there was existence of jurisdictional fact for the Proper Officer to issue the impugned Demand-c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eristics of agglomerated marble remain the same as those of excavated marble?" Having found the High Court going into the questions of fact to resolve the question, it has been observed that the High Court should not have interfered, in a writ petition, at the stage of show cause notice to take over the fact finding investigation. In Coastal Container Transporters Association [supra], the Hon'ble Supreme Court of India has observed that the writ petition under Article 226 of the Constitution of India was preferred at the stage of show cause notice and had further found that the case was neither a case of lack of jurisdiction nor it involved any violation of principles of natural justice so as to entertain the writ petition at the stage of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case. 14. The issues raised in the present writ petition, prima facie , are not relatable to any disputed questions of fact. The petitioner has raised a contention that the statutory prescriptions contained in Section 61 and Section 73 of CGST Act, 2017 r/w Rule 99 of the CGST Rules, 2017 have not been adhered to and without adherence to the conditions precedent, that is, issuance of notice to the registered person in Form GST ASMT-10 to provide the noticee either to accept or not to accept the discrepancy or to furnish an explanation for the discrepancy in Form GST ASMT-11 or not to furnish any explanation, at a period of time anterior ..... X X X X Extracts X X X X X X X X Extracts X X X X
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