Allahabad High Court Dismisses M/S Neelkanth Entrepreneurs GST ITC Plea on Section 61 Scrutiny

The Allahabad High Court has firmly held that the tax department is not required to conduct a scrutiny of returns under Section 61 of the Central Goods and Services Tax (CGST) Act before issuing a show cause notice under Section 74A. The judgment came in a writ petition filed by M/S Neelkanth Entrepreneurs Private Limited, which challenged a notice proposing to deny input tax credit (ITC) on the ground that its sub-contractors were bogus.

A division bench of Justice Shekhar B. Saraf and Justice Abdhesh Kumar Chaudhary dismissed the petition, ruling that where the department's action is based on independent verification —rather than merely on discrepancies in the assessee's own returns—the procedural safeguard of Section 61 does not come into play.

The Dispute

Neelkanth Entrepreneurs, a works-contract service provider, had sub-contracted portions of its projects to 18 registered sub-contractors for the financial year 2025-26 . Based on these sub-contracts, it availed ITC. On July 9, 2026 , the Deputy Commissioner, State Tax, issued a show cause notice under Section 74A(1) of the CGST Act , alleging that the sub-contractors were " bogus and non-existent " and proposing to deny the ITC along with interest and penalty.

Instead of filing a reply to the notice, the company directly approached the High Court under Article 226, arguing that the notice was procedurally invalid and that Section 16(2)(c) of the CGST Act (which conditions ITC on actual payment of tax by the supplier) was unconstitutional. The constitutional challenge was later dropped after the Supreme Court affirmed the provision's validity in Bhandari Scrap Traders v. Union of India .

The Arguments

Petitioner’s Case:
The company argued that the show cause notice was based on a scrutiny of its returns, and therefore the department was bound to follow the mechanism under Section 61 read with Rule 99 of the CGST Rules . This provision requires the proper officer to first inform the assessee of any discrepancy and seek an explanation before taking further action. The petitioner contended that skipping this step violated the statutory scheme and principles of natural justice . It also argued that the invocation of Section 74A(5)(ii)—which applies to cases involving fraud or wilful misstatement —was without jurisdiction because the notice contained no specific allegation of fraud.

Respondent’s Case:
The Additional Chief Standing Counsel for the State countered that the petitioner's returns were never picked for scrutiny. The show cause notice was not triggered by any discrepancy in the returns but by independent verification that the 18 sub-contractors were non-existent entities. Consequently, Section 61 had no application. He submitted that all the factual and legal grounds raised by the petitioner could be urged before the adjudicating authority, and the High Court should not interfere at the show cause stage.

The Court’s Reasoning

The court undertook a detailed analysis of the relationship between Section 61 ( scrutiny of returns ) and Section 74A (determination of tax not paid or ITC wrongly availed). It observed that Section 61 is a " pre-adjudicatory, verificatory mechanism " that does not itself result in a demand. In contrast, Section 74A opens with the words "where it appears to the proper officer," giving the officer wide latitude to act on material from any source—be it scrutiny, audit, inspection, or independent verification .

Crucially, the court held that Section 61 is not the exclusive gateway to Section 74A proceedings. "Section 61 and Section 74A lack commutative property," the bench noted, meaning that while scrutiny may lead to a show cause notice , the reverse is not true.

The court distinguished the precedents relied upon by the petitioner—including decisions from the Orissa, Calcutta, Rajasthan, and Gauhati High Courts—on the ground that in those cases, the department had admitted to initiating scrutiny under Section 61. Here, the department categorically stated that no scrutiny was undertaken, and that assertion was not controverted.

On the issue of jurisdiction under Section 74A(5)(ii), the court found that an allegation of bogus sub-contractors is, "on its very face, an allegation of a fraudulent claim of Input Tax Credit," and thus the ingredients of the provision were sufficiently invoked. Whether the sub-contractors were actually genuine was a question of fact to be adjudicated, not a jurisdictional defect.

Key Observations

The court crystallized its position in a pivotal paragraph:

"Section 61 is not, as a matter of law, an invariable jurisdictional precondition to issuance of every Section 74A notice; but where the proper officer in fact possesses only return-based discrepancy material and no independent source of information, compliance with Section 61 and Rule 99 may be a mandatory procedural safeguard , non-compliance of which may expose the resultant Section 74A proceedings to challenge on ground of jurisdiction or breach of the statutory scheme or principles of natural justice ."

On the question of interfering at the show cause stage, the court quoted the settled principle that a show cause notice does not by itself give rise to a cause of action unless it is issued by an authority wholly without jurisdiction . None of the exceptions laid down in Whirlpool Corporation v. Registrar of Trade Marks were made out, the bench noted.

The Verdict

The writ petition was dismissed. However, the court granted the petitioner four weeks to file a detailed reply to the show cause notice , raising all factual and legal contentions. It directed the adjudicating authority to consider the reply on its own merits, uninfluenced by any observations made in the judgment, and after affording an opportunity of hearing.

The decision reaffirms that the tax department retains flexibility in initiating proceedings under Section 74A and that assessees cannot short-circuit the statutory process by rushing to the High Court before the adjudicating authority has had a chance to examine their defence.