Issuance of summons under Section 70 of the CGST Act is not barred by prior proceedings under Section 6(2)(b) of the same Act.

ORDER :

1. Petitioner has preferred this Civil Writ Petition challenging the issuance of summons dated 27.09.2023 & 14.02.2024 under Section 70 of the Central Goods & Services Tax Act, 2017 (hereinafter referred to as the “CGST Act”) passed by Superintendent/ Appraiser/Senior Intelligence Officer DGGI and praying for quashing and setting aside of the same.

2. It is contended by counsel appearing for the petitioner that State Authorities had initiated the proceedings and as per Section 6(2)(b) of the CGST Act, if a proper Officer under the State Goods and Services Tax Act or Union Territory Goods and Services Tax Act has initiated any proceedings on a subject matter, no proceedings shall be initiated by the proper Officer under this Act on the same subject matter. It is also contended that since the State Authorities had initiated action, summons under Section 70 of the CGST Act, could not have been issued by the DGGI. It is further contended that proper Officer has been defined under Section 2(91) of the CGST Act.

3. It is contended that Guidelines have been issued by the GST-Investigation Wing on issuance of summons under Section 70 of the CGST Act, which are binding on the Authorities. Reliance has been placed on “M/s R.P. Buildcon Private Limited & Anr. v. The Superintendent, CGST & CX, Circle-II, Group-10 & Ors.” (M.A.T. No. 1595 of 2022 with I.A. No. CAN 1 of 2022), decided by the Calcutta High Court on 30.09.2022. Reliance has also been placed on “Vivek Narsaria v. The State of Jharkhand & Ors.” (W.P. (T) No. 4491 of 2023) decided by the High Court of Jharkhand at Ranchi on 15.01.2024.

4. Learned Additional Advocate General-Mr. Bharat Vyas assisted by Ms. Pratyushi Mehta, Adv. as well as learned counsel-Mr. Ajay Shukla along with Mr. Raghav Sharma appearing for the Union of India have vehemently opposed the present Civil Writ Petition. It is contended that present Writ Petition is not maintainable and summons given under Section 70 of the CGST Act cannot be said to be initiation of proceedings. It is also contended that petitioner had made bogus crime and on fake & forged documents he was claiming input tax credit limit and summons were issued under Section 70 of the CGST Act by the DGGI and the bar under Section 6(2)(b) of the CGST Act, would not apply.

5. Learned Additional Advocate General appearing for the State has also contended that when there is inter-se evasion of tax or claim of tax benefit, Union of India is authorized to initiate the proceedings.

6. Learned counsel appearing for the Union of India has placed reliance on “Amit Gupta v. Union of India & Ors.” (W.P. (C) 8625/2022 & CM APPL. 25934/2022) decided by the High Court of Delhi at New Delhi on 04.09.2023; “Indo International Tobacco Ltd. v. Vivek Prasad, Additional Director General, DGGI” : 2022 SCC Online Del 90; “G.K. Trading Company v. Union of India”, 2021 (51) G.S.T.L. 288 (All.); “Kuppan Gounder P.G. Natarajan v. Directorate General of GST Intelligence, New Delhi” 2022 (58) G.S.T.L. 292 (Mad.) and “Yasho Industries Ltd. v. Union of India”, 2021 (54) G.S.T.L. 19 (Guj.).

7. We have considered the contentions and have perused the provisions of the Act as well as judgments cited before us.

8. In “Vivek Narsaria v. The State of Jharkhand & Ors.” (supra), the proceedings were initiated by the State Goods & Services Tax Department and the petitioner was served with a notice by the Preventive Branch of CGST with a direction to reverse the Input Tax Credit along with interest and penalty on account of alleged purchases from the non-existent entity. The Jharkhand High Court observed that the State Authorities had initiated the proceedings and the same should continue with the State Authorities.

9. In “M/s R.P. Buildcon Private Limited & Anr. v. The Superintendent, CGST & CX, Circle-II, Group-10 & Ors.” (supra), the Calcutta High Court has held that since the audit proceedings under Section 65 of the CGST Act has already been commenced, the proceedings should be take