Dadan Singh vs Central Board Of Indirect Taxes And Customs And Others

Heard learned counsel for the parties.

Petitioner has approached this Court for the following relief:

a. For issuance of an appropriate writ in the nature of mandamus and/or any other appropriate writ and/or order and/or direction, directing upon the Respondents to forthwith withdraw, recall, cancel and / or rescind the impugned notices dated 18th October, 2021, as passed by the Respondent No. 2 and to refrain from taking any adverse actions against the petitioner till the disposal of the instant writ petition.

b. For issuance of an appropriate writ in the nature of Prohibition and/or any other appropriate writ and/or order and/or direction, prohibiting upon the Respondents, to from giving any effect or further effect to and/or from taking any step or further steps in terms of or pursuant to the impugned notice dated 18th October, 2021, as passed by Respondent No. 2.

c. For issuance of an appropriate writ in the nature of Certiorari and/or any other appropriate writ and/or order and/or direction, directing upon the Respondents, to certify and transmit the records relating to the instant case to this Hon'ble Court so that conscionable justice might be rendered to the petitioner by quashing the same.

d. For issuance of an appropriate writ, order or direction, imposing an injunction restraining the respondents from giving any effect or further effect to and/or from taking any further step in terms of or pursuant to the impugned notice dated 18th October, 2021 as passed by Respondent No. 2, till disposal of this of the instant writ petition.

e. For issuance of any other appropriate writ(s)/ order(s)/ direction(s) as Your Lordships may deem just and proper in the facts and circumstances of the case for imparting substantial justice to the Petitioners.

Petitioner has been asked to respond to the show cause notice dated 18.10.2021(Annexure-6) issued by the respondent no.2 asking him to show cause as to why tax along with interest and penalty for the stipulated amount under Section 77(1)(a), 77(1)(b), 77(1)(c), 77(2) and 78 of the Finance Act, 1994 be not recovered from him.

Petitioner carries on business in his individual name as a proprietor and engages in arranging trucks/ tankers to transporters being Goods Transport Agency on hire charges. The dispute relate to financial year 2016-17. Learned counsel for the petitioner submits that the assessing authority did not take into account the detailed reply submitted by him pursuant to the summons dated 21.06.2021 vide annexure-2 reply dated 06.08.2021 followed by reply dated 15.09.2021 (Annexure-4) and (Annexure-5) dated 18.10.2021 before issuing the show cause notice. The respondent authorities has not taken into consideration the documents submitted by him before initiating the proceeding. It has not adhered to the pre-show cause notice consultation in terms of clause 5.0 of the master circular dated 21.12.2015. As such, petitioner is being denied the principles of nature justice. Therefore, interference is being sought at this stage by this Court in exercise of writ jurisdiction.

Learned counsel for the respondent CGST at the outset has taken a plea that the writ petition may not be entertained at the stage of show cause notice as the petitioner has not been able to show that the SCN is without jurisdiction. It is further submitted that the contents of the show cause notice reflects violation committed by the petitioner. As such, he may be asked to respond to the SCN and submit his reply. He submits that the procedure prescribed under the Finance Act shall be followed by the adjudicating authority. This Court may fix a time frame for the petitioner to appear and respond to the show cause notice dated 18.10.2021 as he does not seem to have appeared and submitted his reply till date.

Learned counsel for the petitioner then submits that petitioner is willing to appear on any date on which the Court may deem fit.

On consideration of the rival submissions of the parties, we are of the view that interference at the stage of SCN is not called for. Petitioner is required to appear and respond to the show cause notice before the assessing authority. The assessing authority shall fix a date and time for the petitioner to appear and submit his reply with all supporting documents either himself or through his authorized representative by 13.05.2022. Needless to say, on his appearance and submission of reply, concerned authority / respondent no.2 shall proceed in accordance with law after due opportunity to the petitioner.

The writ petition is disposed of accordingly. Let it be made clear that we have not gone into the merits of the case of the parties.