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TMI Blog2024 (2) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... sfying the requirements of Section 74 the consideration might have been different. In Vijaya Venkata Durga Oil Traders v. Commercial Tax Officer [ 2014 (12) TMI 910 - ANDHRA PRADESH HIGH COURT] , the Division Bench of High Court of Judicature at Hyderabad considered the judgment in M/S. UNIWORTH TEXTILES LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE. RAIPUR [ 2013 (1) TMI 616 - SUPREME COURT] . It was held that if the allegations in the show cause notice accepted as true show that the dealer had committed willful evasion of tax and the finding recorded in the assessment order establish that the assessee had willfully evaded tax, it would suffice to extended period of limitation in terms of Section 21(5) of APVAT Act, 2005 notwithstanding that the show-cause notice did not refer to Section 21(5) and did not specifically use the words wilful evasion of tax . It was further held that it was, therefore, necessary to refer to the contents of show cause notice. In the present case it is found that the show cause notice mentioned the grounds for its issuance. Even if it be taken that the suppression is not mentioned, to meet the requirement of Section 74 to issue the notice. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle 226 of Constitution of India. The petitioner is granted opportunity of hearing and to the show-cause notice, he may submit the reply. She placed reliance in the judgment dated 09.11.2023 in W.P.No.28743 of 2023. 6. We have considered the submissions advanced and perused the material on record. 7. The submission is that the show-cause notice does not mention any suppression . 8. Section 74(1) of the CGST Act reads as under: 74. Determination of tax not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilised by reason of fraud or any wilful misstatement or suppression of facts (1) Where it appears to the proper officer that any tax has not been paid or short paid or erroneously refunded or where input tax credit has been wrongly availed or utilised by reason of fraud, or any wilful-misstatement or suppression of facts to evade tax, he shall serve notice on the person chargeable with tax which has not been so paid or which has been so short paid or to whom the refund has erroneously been made, or who has wrongly availed or utilised input tax credit, requiring him to show cause as to why he should not pay the amount speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the tax payer to determine his tax liability by himself. Since tax liability is determined by the tax payer himself, therefore, the term is labelled as self-assessment. Section 59 of CGST Act covers self-assessment under GST regime. In the course of day to day business, a tax payer will do self-assessment and determine tax liability according to each and every sale invoice. The self-assessment is to be completed, except in the case of provisional assessment , with regard to value and rate of tax etc., at the time and place of supply so that correct tax liability is ascertained and discharged. The other aspect of self-assessment is that at the end of tax period, the assessee is required to furnish a return electronically specified under Section 39 also certifying correctness of the data furnished and tax paid for each tax period to the taxation department so that departmental officials are able to scrutinise correctness of payment of taxes. Self-assessment is applicable to all the taxable persons under GST. It appears that the taxpayer contravened the provisions of Section 59 of the CGST Act, 2017 and rendered themselves liable to penalty under Section 125 of the CGST Act, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stage in the exercise of writ jurisdiction. Use of word suppression is not conclusive. Similarly, if this expression is not used in the show cause notice it cannot be said conclusively that there is no suppression. The petitioner by filing reply to the show-cause notice can demonstrate before the authority that there was no suppression. Besides, suppression alone is not the ground under Section 74(1) of CGST Act. Fraud or/and willful misstatement are also the grounds for issuance of show cause notice in evading tax etc. 13. The impugned show cause notice was issued on 21.09.2023. In the prayer clause, as reproduced above, the impugned notice was said to be barred by limitation. However, the learned senior counsel during arguments, on the same being pointed out by learned standing counsel that the notice is not barred by limitation, also submitted that the notice was within the period of limitation of three years for the notice even under Section 73. 14. So, the impugned show cause notice issued mentioning under Section 74 but on the grounds it has been issued, even if not mentioning suppression , would be within the period of limitation under Section 73 as well, as it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration might have been different. 19. In Vijaya Venkata Durga Oil Traders v. Commercial Tax Officer 2014 SCC OnLine Hyd 775 , the Division Bench of High Court of Judicature at Hyderabad considered the judgment in Uniworth Textiles Limited (supra). It was held that if the allegations in the show cause notice accepted as true show that the dealer had committed willful evasion of tax and the finding recorded in the assessment order establish that the assessee had willfully evaded tax, it would suffice to extended period of limitation in terms of Section 21(5) of APVAT Act, 2005 notwithstanding that the show-cause notice did not refer to Section 21(5) and did not specifically use the words wilful evasion of tax . It was further held that it was, therefore, necessary to refer to the contents of show cause notice. 20. The aforesaid judgment cited by learned counsel for the petitioner, does not support his contentions. On the contrary from the said judgment, the relevant part being reproduced shortly, what follows is that the contents of the show cause notice determine the true nature of the notice as to under which provision it has been issued, notwithstanding that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng legality of the show-cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless the High Court is satisfied that the show-cause notice was totally non est in the eye of the law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine, and the writ petitioner should invariably be directed to respond to the show-cause notice and take all stands highlighted in the writ petition. Whether the show-cause notice was founded on any legal premises, is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the court. Further, when the court passes an interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are not denuded of powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mere issuance of show-cause notice. In the present case no show-cause notice was even issued when the High Court had initially entertained the petition and directed the Department to prima facie consider whether there was material to proceed with the matter. 30. In the present case, APGST Act is also a complete code and consequently, we are of the considered view that the petitioner should respond to the show cause notice raising all such objections, as may be raised before the authority issuing the show cause notice and in case any adverse order is passed and the petitioner feels aggrieved, the petitioner may then have recourse to the appropriate proceedings. 23. For all the aforesaid reasons we are of the considered view that the present writ petition against the impugned show cause notice is not liable to be entertained. 24. The Writ Petition is dismissed, however, leaving it open to the petitioner to approach the competent authority by filing reply and raising such objections as may be open under law and as may be advised. 25. No order as to costs. As a sequel thereto, miscellaneous petitions, if any pending, shall also stand dismissed. - - TaxTMI - T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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