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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
DEVASHIS BARUAH, J.
M/s Rasidul Hoque & Ors. - Appellants
Versus
The State of Assam, Through the Commissioner and Secretary to the Government of Assam, Ministry of Finance and Taxation & Ors. - Respondents
WP(C) No. 4694 of 2024
Decided On : 18-09-2024
Taxation - Assam Goods and Service Tax Act - Sections 74, 107 - The court interpreted the provisions regarding the issuance of show cause notices and the jurisdiction of authorities, emphasizing the need for separate orders for different financial years and the availability of alternative remedies.
Fact of the Case:
The petitioners challenged an order regarding the mis-declaration of ITC and wrongful refund, asserting that the order violated procedural requirements and jurisdictional authority under the Assam GST Act.
Finding of the Court:
The court found that the petitioners had an alternative remedy under Section 107 of the Assam GST Act and that the order, while composite, did not render it without jurisdiction. The petitioners failed to demonstrate a violation of natural justice.
Issues: Whether the court should entertain the writ petition given the availability of an alternative remedy and whether the order violated the principles of natural justice and jurisdictional requirements.
Ratio Decidendi: The court held that it would not entertain the writ petition as an effective alternative remedy existed, and the petitioners did not adequately demonstrate a violation of natural justice or jurisdiction.
Result: The writ petition is dismissed, allowing the petitioners to pursue an appeal under Section 107 of the Assam GST Act.
JUDGMENT :
Devashis Baruah, J.
Heard Ms. N. Hawelia, the learned counsel appearing on behalf of the Petitioners and Mr. B. Gogoi, the learned Standing counsel appearing on behalf of the Finance and Taxation Department of the Government of Assam.
2. The instant writ petition has been filed challenging the Order-in-Original dated 12.08.2024 passed by the Assistant Commissioner of State Tax, Dhubri Zone in respect to the Financial Year April 2023 - March 2024 whereby the authority concerned arrived at an opinion that the Petitioners had resorted to willful mis-declaration of the available ITC and claimed wrongful refund. Accordingly, the Petitioners were directed to pay an amount of Rs.1,28,99,290/- for the period from March, 2022 to March, 2023 and Rs.87,13,636/- for the period April, 2023 to February 2024. The Petitioners have also assailed the ITC Block Notice issued by the Assistant Commissioner of State Tax dated 12.08.2024.
3. The case of the Petitioners herein is that the Petitioners admittedly had taken refunds on 18.01.2024 for Rs.98,72,907/- for the period March, 2022 to March, 2023 and further on 13.03.2024 another amount of Rs.75,16,516/-for the period April, 2023 to February, 2024. Subsequent thereto, a Show Cause Notice was issued by the Deputy Commissioner of State Tax dated 09.04.2024 in exercise of the powers under Section 74 of the Assam Goods and Service Tax Act, 2017 (for short ‘the Act of 2017’) asking the Petitioners to show cause as to why the Petitioners should not refund the amount which have been erroneously refunded on 18.01.2024 and 13.03.2024 respectively along with interest and penalty. In the said Show Cause Notice, it was specifically mentioned that the reply should be provided within 30 days from the date of receipt of the notice. The Petitioner thereupon submitted a prayer on 08.05.2024 in FORM GST DRC-06 stating inter alia that the Petitioner would require some more time to submit the reply. In the portal, the Petitioners stated in the optional column for personal hearing that the Petitioners would not avail personal hearing. Thereupon, the Respondent No.4, who is the Assistant Commissioner of State Tax passed the Order-in-Original on 12.08.2024 which had been impugned in the instant proceedings.
4. The challenge so made in the instant proceedings by the Petitioners primarily are :
(ii) The notice was issued by the Respondent No.3 and the order was passed by the Respondent No.4 and it is the specific submission of the learned counsel appearing on behalf of the Petitioners that it is only the authority who has issued the Show Cause Notice could only pass the impugned order.
(iii) It is the further case of the Petitioners that on 29.05.2023, a notice under Section 61 of the Act of 2017 was issued asking the petitioner to explain the discrepancies within 15 days in respect to the ITC claim for the tax period April 2022 to March 2023. It is the case of the petitioners that the said proceedings were dropped and under such circumstances, no proceedings could have been initiated in respect to the period April, 2022 to March, 2023 by initiating proceedings under Section 74 of the Assam GST Act 2017.
(iv) It is the further case of the Petitioners that this Court ought to exercise the writ jurisdiction in the present facts taking into account that in the statutory appeal provided under Section 107 of the Act of 2017, various defences which the Petitioners could have raised is not available to the Petitioners as the Petitioners failed to submit the show cause.
5. Mr. B. Gogoi, the learned Standing counsel appearing on behalf of the Finance and Taxation Department of the State of Assam submitted that the Petitioners has an alternative and efficacious remedy available under Section 107 of the Act of 2017. He submitted that this is not a case which will come within the exceptional c
The court affirmed that alternative remedies must be exhausted before seeking writ relief, particularly in tax recovery matters, emphasizing jurisdictional compliance.
The court affirmed that when a statutory remedy exists, a writ petition under Article 226 is not typically entertained unless exceptional circumstances are demonstrated.
The court affirmed that a statutory remedy under Section 107 of the CGST Act exists, thus not entertaining the writ petition under Article 226.
The court emphasized the necessity of exhausting statutory remedies before seeking writ relief under Article 226.
The court emphasized that orders passed by administrative or quasi-judicial authorities are required to stand or fall on their own and subsequent explanations by way of affidavit(s) cannot be permitt....
The court emphasized that while an alternative remedy is available, the High Court has the discretion to entertain a writ petition. The court also highlighted that the availability of an alternative ....
Proper issuance of a Show Cause Notice is a prerequisite for valid tax determination under the Assam Goods and Services Tax Act, 2017.
Composite show-cause notices covering multiple financial years under CGST/KGST Act are illegal as assessments must pertain to individual years, respecting statutory limitations and ensuring natural j....
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