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TMI Blog2024 (7) TMI 1240X X X X Extracts X X X X X X X X Extracts X X X X ..... lar is apparently traceable to Section 2(91) of the Act and not Section 167 of the Act, thus, issuance of a notification may not be necessary for authorising/ assigning proper officers with power of adjudication. In this regard, it may be relevant to refer to the judgment of the Gujarat High Court in the case of Yasho Industries Ltd. vs. Union of India [ 2021 (6) TMI 918 - GUJARAT HIGH COURT] wherein identical contention stood rejected - the challenge to Circular No.9 of 2019 on the ground that the authorisation of power of adjudication by way of Circular is impermissible is liable to be rejected. Whether the assessing authority was the inspecting authority and permitting the very same authority to adjudicate would fall foul of the maxim No man can be a judge of his own cause. ? - HELD THAT:- It is trite law that adjudication of disputed questions of fact falls outside the purview of Article 226 of the Constitution of India - There can be no doubt that even though the High Court can entertain a Writ Petition against any order or direction passed / action taken by the State and / or its authorities under Article 226 of the Constitution of India, it ought not to do so as a matter of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 020 and 21.12.2020 for the said period. Thereafter, the 1st Respondent issued notices dated 02.12.2020 and 03.12.2020 and fixed the personal hearing on 14.12.2020. 4. The petitioner filed copies of invoices, E-way bills, party's ledger account and Bank statements disclosing the payment made to the alleged bill traders viz., Zahira Trading Company, A.R.Enterprises, M.I.Traders, Basheer and Co. and MAK Enterprises. The petitioner also submitted its explanation to the proposal to reject its claim of ITC on vehicles and its spare parts. The proposal to reverse ITC on the supplies made by M/s.A.R.Enterprises and M.I.Traders was dropped vide notice dated 03.12.2020 for the assessment years 2018-19 and 2019-20. However, thereafter, the respondent issued yet another notice dated 29.12.2020 for the assessment years 2018-19 and 2019-20 stating that the proposal to deny ITC in respect of M/s.A.R.Enterprises and M.I.Traders was wrongly dropped in the absence of documents being furnished by the petitioner to prove the genuineness of the transaction in particular transport documents such as lorry receipts, freight charges etc. In the meanwhile, the 1st Respondent issued notice dated 28.12.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... traceable to Section 2(91) of the Act and not Section 167 of the Act, thus, issuance of a notification may not be necessary for authorising/ assigning proper officers with power of adjudication. In this regard, it may be relevant to refer to the judgment of the Gujarat High Court in the case of Yasho Industries Ltd. vs. Union of India in Special Civil Application No.7388 of 2021 dated 24.06.2021 wherein identical contention stood rejected, the relevant portions of the said order is extracted hereunder: 13. ......Therefore, the respondent No.3 is a proper officer in relation to the function to be performed under the CGST Act as contemplated under Section 2(91), and as such, was entitled to issue summons under Section 70 of the CGST Act in connection with the inquiry initiated against the petitioner. 14. The submission of Mr. Rastogi that the said assignment of function has to be by way of Notification and not by way of Circular in view of Section 167 of the CGST Act is thoroughly misplaced. Section 167 of the CGST Act pertains to the delegation of powers by the Commissioner exercisable by any authority or officer under the Act to be exercisable also by another authority or officer a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 70 of the CGST Act. (emphasis supplied) 7.1. Thus, I find that the challenge to Circular No.9 of 2019 on the ground that the authorisation of power of adjudication by way of Circular is impermissible is liable to be rejected. 8. There is no dispute to the position that the 1st Respondent is also a proper officer, it is however the case of the petitioner that the 1st Respondent having carried out the inspection, cannot undertake the adjudication for it would then be vitiated by bias. Similar issue had arisen for consideration before this Court under the erstwhile TNGST Act, 1959, wherein challenge was made to the power of the Enforcement Wing officers to carry out assessment on the ground of alleged bias. The same was rejected finding that merely because a person during inspection or a raid was able to get at and collect some material warranting or justifying reassessment he would not become disqualified on the ground of bias to exercise the powers of reassessment under Section 16 or 16-A of the Act, the relevant portions of the judgment is extracted hereunder: 24. We now take up for consideration the challenge made to the notification on the ground of alleged bias or over in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , objectively and without bias. Bias or want of impartially could not be readily assumed merely because the officers of a particular department or a wing of the department are involved nor because the particular officer was instrumental in unearthing suppression. From the notifications issued constituting the enforcement wing and the allocation of jurisdiction, we are of the view that normally scope for every same inspecting officer exercising powers of assessment who gathered materials would be very little and invariably it would be some other officer who would be really exercising such powers of assessment through pertaining to the same wing. That apart, can it be legitimately claimed that merely because a person during inspection or a raid was able to get at and collect some material warranting or justifying reassessment he becomes disqualified to exercise the powers of reassessment under section 16 or 16-A of the act. Even in the case of regular Assessing officer who exercised powers under section 12 of the Act before invoking the provisions of section 16 or 16-A of the Act he has to get hold of some material or should be armed with some reason to proceed with reassessment and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le bias lacks merit. As a matter of fact, I also find that subsequent to the Circular No.9 of 2019 there have been at least four other circulars issued viz., Circular No.10 of 2019, 72 of 2019, 23 of 2021 and 13 of 2022 dated 31.05.2019, 04.10.2021 and 08.11.2022 respectively. Circular No.10 of 2019 dated 31.05.2019 was issued setting out the guidelines and the protocol to be followed by the Enforcement Wing renamed as Intelligence Wing. Even in terms of this Circular, the head of the inspecting team or any such officer not below the rank of State Tax Officer authorised by the Joint Commissioner (Intelligence) was enabled to pass the final assessment or adjudication order on the basis of the findings made during the inspection. The 4th Respondent vide Circular No.72 of 2019 authorised the officers working in the Intelligence wing to exercise the powers vested under Section 62, 63, 64, 73 or 74 of the TNGST Act, 1959, in respect of cases inspected by them as they are already notified as proper officer vide Notification No.4 of 2017. Thereafter, Circular 72 of 2019 was revisited by the 4th Respondent and Circular No.23 of 2021 dated 04.10.2021 was issued which inter-alia required the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diction of the High Court was bypassed, the appellants moved the High Court challenging the competence of the Provincial Legislature to extend the concept of sale, and invoked the extraordinary jurisdiction of the High Court under Article 226 and sought to reopen the decision of the taxing authorities on question of fact. The jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary : it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally ..... X X X X Extracts X X X X X X X X Extracts X X X X
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