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TMI Blog2024 (12) TMI 831X X X X Extracts X X X X X X X X Extracts X X X X ..... the initiation of an adjudicatory process and does not warrant judicial interference unless it is shown to be issued wholly without jurisdiction or is ex-facie perverse. This Court relied on the principles established in SPECIAL DIRECTOR VERSUS MOHD. GHULAM GHOUSE [ 2004 (1) TMI 378 - SUPREME COURT] emphasizing that writ jurisdiction can be invoked only when the SCN is issued wholly without jurisdiction wherein it has been held by the Hon ble Supreme Court that ' 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 the writ petition is not accorded to the writ petitioner even at the threshold by the interim protection not granted.' Therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Board of Indirect Taxes and Customs (CBIC) Press Release dated 04.05.2018, which clarifies that ITC reversal from buyers is not automatic and recovery of unpaid tax should be made from defaulting suppliers unless exceptional circumstances exist (e.g., missing dealer or closure of business). 4. The Petitioners assert that all necessary criteria under Section 16 of the CGST/WBGST Act for availing ITC were met, including holding valid tax invoices and receiving goods from the suppliers. The alleged suppliers had also filed requisite returns, and their registrations were later cancelled retrospectively without the Petitioners having prior knowledge of such cancellations. 5. The Petitioners highlight that they had submitted a detailed reply to the pre-show cause notice issued in Form GST DRC-01A, refuting the allegations. However, Respondent No. 1 did not take any recovery action against the defaulting suppliers, which is a statutory prerequisite for demanding disputed ITC from the recipient and also failed to consider the submissions and issued the Impugned SCN without applying its mind, making the entire adjudication process a mere formality thereby leading to the preference of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCN, as it is arbitrary, unreasonable, and in violation of statutory provisions and judicial pronouncements. They also request this Hon ble Court to direct the Respondents to comply with the established legal framework for ITC disputes, including taking appropriate action against the defaulting suppliers. 14. Submissions of the Learned Counsel appearing for the respondent authorities is that it is a well-settled law that a writ petition is ordinarily not maintainable against a Show Cause Notice unless it is wholly without jurisdiction or ex-facie perverse. The petitioners have failed to demonstrate that the issuing authority acted beyond jurisdiction or that the Show Cause Notice is without jurisdiction or perverse. Reliance is placed on by the respondent authority in Special Director and Another vs. Mohd. Ghulam Ghouse and Another reported in (2004) 3 SCC 440. 15. The petitioners allege that the impugned Show Cause Notice is an exact replica of the notice issued in FORM GST-DRC-01A dated 10th July 2024 i.e., the intimation before Show Cause Notice. They further contend that their reply to FORM GST-DRC-01A was not considered by the proper officer, who proceeded to issue the Show C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d only when the SCN is issued wholly without jurisdiction wherein it has been held by the Hon ble Supreme Court that: 5. This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning 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 caref ..... X X X X Extracts X X X X X X X X Extracts X X X X
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