A petitioner under Article 226 must first respond to a show cause notice before approaching the court.

JUDGMENT

The petitioner, who is admittedly not an assessee/tax payer with reference to the provisions of the CGST Act , 2017/ SGST Act, 2017/ IGST Act, 2017, has filed the captioned writ petition seeking to challenge the show cause notice at Ext.P1 issued under the provisions of Section 74 of the CGST Act .

2. I have heard Sri.Akhil Suresh, the learned counsel for the petitioner, as well as Sri.Sreelal N. Warrier, the learned Standing Counsel for the 2^nd respondent.

3. The contention raised by Sri.Akhil Suresh, the learned counsel for the petitioner, is to the effect that the petitioner herein has been proceeded against with reference to the activities of one M/s Vaikom Enterprises, which is a proprietary concern of one Milton Paul, who is the primary noticee in Ext.P1 notice. According to him, the notice at Ext.P1 has been issued essentially on the allegation that refund in excess of Rs.2.60 Crores has been obtained by the tax payer referred to above, on the basis of certain non-existent input tax credit, since there was actually no movement of goods to prove receipt of goods so as to avail ITC. According to him, the petitioner herein was in no way connected with the business of the noticee/tax payer and the proceedings have been initiated solely on the basis of certain statements elicited from the tax payer referred to above. He further pointed out, with reference to the search carried out in the premises of the petitioner, about which the notice makes specific reference, that in spite of carrying out the search, no incriminating records were recovered from the premises. In the light of the above, it is his submission that the provisions of Sections 74 to 84 under chapter XV of the CGST Act are not attracted to the petitioner herein and, therefore, the notice at Ext.P1 is one issued without jurisdiction.

4. In such circumstances, Sri.Akhil Suresh concludes his submissions by contending that a writ petition under Article 226 of the Constitution of India is maintainable before this Court.

5. However, Sri. Sreelal N. Warrier, the learned Standing Counsel for the 2^nd respondent, with reference to the contents of the counter affidavit, would point out that the respondents were justified in proceeding against the petitioner herein on the basis of evidence adduced. He would further submit, with reference to the provisions of the statute, that the petitioner, who had some sort of connection with the noticee/tax payer, can be roped in by issuing a show cause notice and it is for the petitioner herein to respond to the same. Hence, according to him, the jurisdiction of this Court under Article 226 of the Constitution of India cannot be exercised to challenge a notice in the nature of the one at Ext.P1.

6. I have considered the rival submissions as well as the connected records.

7. The preliminary issue arising for consideration in this writ petition is as to whether the petitioner is entitled to maintain a writ petition under the provisions of Article 226 of the Constitution of India against Ext.P1.

8. On similar circumstances, when a show cause notice issued under Section 74 of the CGST Act was challenged, this Court, by judgment dated 28.11.2024 in W.P.(C) No.34061 of 2024, has held that the noticee in such circumstances has to respond to the notice and not rush to this Court under Article 226 of the Constitution of India.

9. In the case at hand, this Court notices that various allegations have been levelled against the petitioner herein through Ext.P1 show cause notice. True, Sri.Akhil Suresh, as noticed earlier, has raised a contention to the effect that even after carrying out a search in