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TMI Blog2024 (7) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... e pre-notice consultation on or before 18.04.2024 and considering the fact that the hearing is fixed on 23.4.2024, this Court granted an indulgence to adjourn the matter for two months. However, till today, no such order is passed by the respondent authority. The impugned show cause notice is hereby quashed and set aside with liberty to the respondent authority to pass appropriate order within the pre-notice consultation conducted on 23.04.2024, and thereafter, may initiate the proceedings if required if the same is within the period of limitation. Petition disposed off. - HONOURABLE MR. JUSTICE BHARGAV D. KARIA AND HONOURABLE MR. JUSTICE NIRAL R. MEHTA Appearance : For the Petitioner(s) No. 1 : Amal Paresh Dave (8961) For the Petitioner(s) No. 1 : Mr Paresh M Dave (260) For the Respondent(s) No. 2 : None For the Respondent(s) No. 1 : Mr Ankit Shah(6371) For the Respondent(s) No. 2 : Mr Nikunt K Raval (5558) ORAL ORDER (PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA) 1. Learned advocate Mr. Paresh Dave has tendered the draft amendment. The same is allowed in terms of the draft. To be carried out forthwith. 2. Heard learned advocate Mr. Paresh Dave for the petitioner and learned ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atory condition of pre-notice consultation laid down by the Government vide para No. 5 of the Master Circular dated 10th March, 2017. 5. Learned advocate Mr. Paresh Dave for the petitioner referred to and relied upon decision in case of Dharamshil Agencies v. Union of India in Special Civil Application No. 8255 of 2019 and submitted that the show cause notice may be quashed and set aside and matter may be remanded back to the respondent authorities for mandatory requirement of the pre-notice consultation. Considering such submissions, this Court passed the following order on 14.03.2024:- [1] Heard learned advocate Mr. Paresh Dave for the petitioner, learned advocate Mr. Ankit Shah for the respondent No.1 and learned advocate Mr. Nikunt Raval for the respondent No. 2. [2] The principal grievance raised in this petition is not abiding by the requirement of the pre-show cause notice consultation as provided in Master Circular dated 10th March 2017, as demand of duty involves more than Rs. 50,00,000/-. [3] The impugned show-cause notice in this petition is issued without following the mandatory requirements of the Master Circular. [4] Learned advocates for both the sides referred to an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hered to by the respondent authorities. The Board had earlier issued circulars and instructions on the show-cause notices and issued the master circular dated 10.3.2017 (Annexure-E) consolidating the earlier circulars to ensure clarity and ease of reference. It has been mentioned in the said master circular that the said circular was issued as an effort to compile relevant legal and statutory provisions, circulars of the past and to rescind the circulars which had lost relevance. Paragraph 5 of the said Circular deals with the consultation with the noticee before issue of show-cause notice. The said paragraph being relevant reads as under:- 5. Consultation with the noticee before issue of Show Cause Notice: Board has made pre-show cause notice consultation by the Principal Commissioner/Commissioner prior to issue of show cause notice in cases involving demands of duty above Rs. 50 lakhs (except for preventive/office related SCN s) mandatory vide instruction issued from F. No. 1080/09/ DLA/MISC/15, dated 21st December 2015. Such consultation shall be done by the adjudicating authority with the assessee concerned. This is an important step towards trade facilitation and promoting vol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce tax, which was to expire on 15.4.2019. Such a pre-consultation notice and the impugned show-cause notice issued on 12.4.2019, being in contravention of the circular dated 10.3.2017 issued by the Board, the same cannot be sustained and deserve to be quashed and set aside. 10. It is required to be noted that as such the demand made in the impugned show-cause notice was within the prescribed time limit. Now, since the said notice is sought to be set aside on the ground that adequate opportunity of hearing was not given to the petitioners for consultation prior to the issuance of the said notice, the petitioners cannot be permitted to take unfair advantage on the ground that the demand made in the notice had now become time-barred in view of the statutory provisions. A precise observations made by the Supreme Court in this regard in case of The Director of Inspection of Income-tax (Investigation), New Delhi (supra) be reproduced as under:- 6. ... The Court in exercising its powers under Article 226 has to mould the remedy to suit the facts of a case. If in a particular case a Court takes the view that the Income-tax Officer while passing an order under s. 132 (5) did not give an ade ..... X X X X Extracts X X X X X X X X Extracts X X X X
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