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TMI Blog2024 (5) TMI 1213X X X X Extracts X X X X X X X X Extracts X X X X ..... s an absolute bar to the maintainability of a writ petition. It has, thus, been observed that entertainability and maintainability of a writ petition are distinct concepts. While an objection to the maintainability goes to the root of the matter, the question of entertainability is entirely within the realm of discretion of the High Courts. Non-issuance of summary of notices/orders electronically on the portal - HELD THAT:- Service of the notice or the order, as the case may be, under Section 73, CGST Act, 2017, by giving or tendering it directly or by a messenger to the taxable person or the addressee, etc. in the manner, is a statutorily permissible mode of service. By making the notice or the order available on the common portal is another statutorily permissible mode of service - The duty is cast on the proper officer to issue notice to the person concerned of the proposed action to be taken. The notice is not in the nature of a public notice nor any person other than the person against whom the proceedings are initiated has any right for such a notice. Thus, this right of notice being personal to the person concerned, the same can be waived by that person. Non-uploading of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23 and the Order-in-Original dated 14.12.2023 in the extra-ordinary and discretionary jurisdiction under Article 226 of the Constitution of India. In such view of the matter, this Court has found that the instant writ petition is not to be entertained - Petition dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... company vide its Letter on the subject - 'Audit Observations', dated 30.11.2021. After issuance of the Letter dated 30.11.2021, the respondent no. 3 issued a Corrigendum to 'the Audit Observations' on 16.12.2021. In response to 'the Audit Observations' made by the respondent no. 3, the petitioner company submitted its Reply on 30.12.2021 wherein the petitioner accepted some of the liabilities as noted in 'the Audit Observations' and duly discharged the said liabilities voluntarily in Form GST DRC-03. 5. Sub-section [6] of Section 65 requires that on conclusion of audit, the proper officer shall, within the stipulated period, inform the registered person, whose records are audited, about the findings, his rights and obligations and the reasons for such findings. As per sub-rule [5] of Rule 101 of the CGST Rules, 2017, on conclusion of the audit, the proper officer shall inform the findings of audit to the registered person in accordance with the provisions of sub-section [6] of Section 65 in FORM GST ADT-02. In the case in hand, the findings of the Audit in FORM GST ADT-02 was served upon the petitioner company on 01.09.2022. 6. As per sub-Section [7] of Section 65 of the CGST Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Noticee, in this regard should not be confirmed and appropriated in terms of Section 122[1][xvi] of the Assam GST Act, 2017, in respect of Audit Para-5. [vii] Penalty amounting to Rs. 10,000/- [CGST] should not be imposed on them in terms of Section 122[1][xvii] of the Central GST Act, 2017 in respect of Audit Para-6. [viii]The penalty amounting to Rs.10,000/- [AGST] already paid by the Noticee, in this regard should not be confirmed and appropriated in terms of Section 122[1][xvii] of the Assam GST Act, 2017, in respect of Audit Para-6. 8. On receipt of the Demand-cum-Show Cause Notice, the petitioner company submitted its Reply to the Show Cause Notice on 04.12.2023. It was thereafter, the Order-in-Original came to be passed by the Adjudicating Authority on 14.12.2023. The Adjudicating Authority after discussion and recording its findings, had proceeded to pass the following order :- [1] I confirm the demand of GST amounting to Rs. 24,00,059/- [Rupees Twenty four lakh and fifty nine only] [IGST: Rs. 19,11,519/- + CGST: Rs. 2,44,270/- + AGST: Rs. 2,44,270/-] in respect of Audit Para-3 under Section 73 [1] of the Central Goods and Services Tax Act, 2017 / Assam Goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has submitted that the entire proceedings right from the stage of issuance of the Demand-cum-Show Cause Notice till passing of the Order-in-Original on 14.12.2023 are vitiated in view of non-compliance of the statutory prescriptions contained in the CGST Act, 2017 and the CGST Rules, 2017. Specifically pointing out, Ms. Mukherjee has contended that the proceedings are in violation of the provisions contained in Rule 142 of the CGST Rules, 2017. Ms. Mukherjee has further drawn attention to Instruction no. 04/2023-GST dated 23.11.2023 to submit that neither the summary of the Demand-cum-Show Cause Notice issued under Section 73[1] nor the summary of the Order-in-Original issued under Section 73[9] of the CGST Act, 2017 had been uploaded on the portal in FORM GST DRC-01 and FORM GST DRC-07 respectively. In view of such violation of the statutory prescriptions, which are required to be scrupulously followed by the respondent authorities, neither the Demand-cum-Show Cause Notice dated 22.09.2023 nor the Order-in-Original dated 14.12.2023 is sustainable in law. The next limb of submission of Ms. Mukherjee is to the effect that the Demand-cum-Show Cause Notice was issued by one authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any had chosen not to appear for personal hearing on those four dates, it is not open for the petitioner now to contend that the Demand-cum-Show Cause Notice was issued by one authority and the Order-in-Original has been passed by another authority. 13. I have duly considered the submissions of the learned counsel for the parties and have perused the materials available on record. 14. The events leading to the issuance of and the reasons behind issuance of the impugned Demand-cum-Show Cause Notice under sub-section [1] of Section 73 of the CGST Act, 2017 have already been outlined above. As per sub- Section [1] of Section 73 of the CGST Act, 2017, 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 for any reason, other than the reason of fraud or any wilful-misstatement or suppression of facts to evade tax, he shall serve a 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing note of the provisions contained in Section 73 of the CGST Act, 2017 and the CBIC is of the view that non-issuance of the summary of notices / orders electronically on the portal could be in clear violation of the explicit provisions of the CGST Rules. The proper officers have been accordingly directed to ensure that summary of the notices and the summary of the orders issued under Section 73 of the CGST Act are uploaded electronically on the portal in FORM GST DRC-01 and FORM GST DRC-07 respectively. The relevant excerpts of Instruction no. 04/2023-GST are quoted herein below :- 4. It is highlighted that non-issuance of the summary of such notices / orders electronically on the portal is in clear violation of the explicit provisions of CGST Rules. Besides, serving / uploading the summary of notices / orders electronically on the portal not only makes the said notices / orders available electronically to the taxpayers on the portal, but also helps in keeping a track of such proceedings and consequential action in respect of recovery, appeal etc, subsequent to issuance of such notices / orders. Accordingly, any deviation from this requirement under CGST Rules may adversely imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticle 226 of the Constitution of India does not, in terms, impose any limitation or restraint on the exercise of power to issue writs. Exercise of writ powers despite availability of a remedy under the very statute which has been invoked and has given rise to the action impugned in the writ petition ought not to be made in a routine manner, yet, the mere fact that the petitioner before the High Court, in a given case, has not pursued the alternative remedy available to him / it cannot be construed as a ground for its dismissal. It has been observed that the High Courts, bearing in mind the facts of each particular case, have a discretion whether to entertain a writ petition or not. One of the self-imposed restrictions on the exercise of power under Article 226 that has evolved through judicial precedents is that the High Courts should normally not entertain a writ petition, where an effective and efficacious alternative remedy is available. At the same time, it is required to be remembered that mere availability of an alternative remedy of appeal or revision, which the party invoking the jurisdiction of the High Court under Article 226 has not pursued, would not oust the jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ian Oil Corpn. Ltd., [2003] 2 SCC 107; State of H.P. vs. Gujarat Ambuja Cement Ltd., [2005] 6 SCC 499]. 12. The Constitution Benches of this Court in K.S. Rashid and Sons vs. Income Tax Investigation Commission, AIR 1954 SC 207; Sangram Singh vs. Election Tribunal, Kotah, AIR 1955 SC 425; Union of India vs. T.R. Varma, AIR 1957 SC 882; State of U.P. vs. Mohd. Nooh, AIR 1958 SC 86; and K.S. Venkataraman and Co. [P] Ltd. vs. State of Madras, AIR 1966 SC 1089, have held that though Article 226 confers a very wide powers in the matter of issuing writs on the High Court, the remedy of writ absolutely discretionary in character. If the High Court is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere, it can refuse to exercise its jurisdiction. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of the principles of natural justice or the procedure required for decision has not been adopted. [See N.T. Veluswami Thevar vs. G. Raja Nainar, AIR 1959 SC 422; Municipal Council, Khurai vs. Kamal Kumar, [1965] 2 SCR 653; Siliguri Municipality vs. Amalendu Das, [1984] 2 SCC 436; S.T. Muth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 SCC 272; Sheela Devi vs. Jaspal Singh, [1999] 1 SCC 209; and Punjab National Bank vs. O.C. Krishnan, [2001] 6 SCC 569]. 14. In Union of India vs. Guwahati Carbon Ltd., reported in [2012] 11 SCC 651, this Court has reiterated the aforesaid principle and observed: [SCC p. 653, para 8] 8. Before we discuss the correctness of the impugned order, we intend to remind ourselves the observations made by this Court in Munshi Ram v. Municipal Committee, Chheharta, reported in [1979] 3 SCC 83. In the said decision, this Court was pleased to observe that: [SCC p. 88, para 23]. 23. ..[when] a revenue statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a particular way, it must be sought in that forum and in that manner, and all the other forums and modes of seeking [remedy] are excluded. 15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned in the Demand-cum- Show Cause Notice issued under Section 73[1] of the CGST Act, 2017. 22. On perusal of Instruction no. 40/2023-GST dated 23.11.2023, it is noticed that the same has been issued after it came to the notice of the CBIC that some of the field formations are serving the Show Cause Notices and the Orders passed inter-alia under Section 73, CGST Act, 2017 manually only and are not serving the summary of the notices and the summary of the Orders passed inter-alia under Section 73, CGST Act, 2017 electronically on the portal. In the considered view of this Court, by not whispering anything in its Reply to the Show Cause Notice, submitted on 04.12.2023, by the petitioner company, it had, by implication, waived the requirement of uploading of the notice electronically on the portal. It is well settled in law that ordinarily, a mandatory provision of law requires strict compliance but there are situations / exceptions where even if a provision is mandatory, non-compliance would not result in nullification of the act. For example, if a certain requirement or condition is provided in a statute for the benefit or interest of a particular person, the same can be waive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order, as the case may be, under Section 73, CGST Act, 2017, by giving or tendering it directly or by a messenger to the taxable person or the addressee, etc. in the manner, is a statutorily permissible mode of service. By making the notice or the order available on the common portal is another statutorily permissible mode of service. 25. In Commissioner of Customs, Mumbai vs. Virgo Steels, Bombay and another, reported in [2002] 4 SCC 316, a point was raised to the effect that the notice required to be issued under Section 28 [as it then stood] of the Customs Act, 1962 was not issued to the respondent. It was contended that a notice under Section 28 of the Customs Act, 1962 was a condition precedent to invoke the jurisdiction of the officer concerned and in the absence of such notice proceedings initiated for the recovery of duty would be void. It was contended that the principle of waiver did not apply to a mandatory requirement of law. On the other hand, it was contended by the Department that the respondent company having expressly waived its right to receive the show cause notice as also personal hearing, could not be permitted to turn around and say that non-issuance of noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Demand-cum-Show Cause Notice nor the Order-in-Original had/has any public character as it dealt/deals with the individual rights of the petitionerassessee only. By not raising anything about non-uploading of the summary of the Demand-cum-Show Cause Notice on the common portal in its Reply to the Demand-cum-Show Cause Notice, the petitioner had clearly waived the right to urge about non-compliance as regards uploading on the common portal. The petitioner-assessee has not raised any ground on prejudice qua non-uploading of the summary of the Order-in-Original. The petitioner-assessee has already received the copy of the Order-in-Original. The power to frame rules is conferred by the Act. In the present case, the power to frame the CGST Rules, 2017 is conferred by the CGST Act, 2017. If a provision in the rules is inconsistent with a provision of the parent statute, then such provision in the rules ordinarily, has to be read with the provision of the parent statute for the purpose of reconciling them, if there appears to be some kind of conflict. In case of any inconsistency, the rules must give way to the parent statute. In essence, it is not a case of no service of either of the De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring was served upon the petitioner-assessee and the said fact has been vehemently disputed by the learned Standing Counsel, CGST. Conspicuously, it is not a pleased case in the writ petition that the petitioner-assessee did not have any knowledge or notice about the dates of personal hearing. It is also not a pleaded case of the petitioner in this writ petition that the petitioner-assessee had asked for affording an opportunity of personal hearing after receipt of the Demand-cum-Show Cause Notice dated 22.09.2023. A ground not taken and pleaded in the writ petition is not to be raised in argument. Such claim and counter claim at best, gives rise to a dispute on the factual aspects which are not required to be decided in a writ proceeding, if its determination requires leading of and appreciation of evidence. As a statutory appeal is considered to be continuation of the original proceedings, determination of disputed questions of fact would fall within the province of the appellate authority, as the appellate authority has the jurisdiction to decide both on the facts as well as in law. 29. In the absence of any such materials, the only conclusion which can be drawn is that the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X
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