S.N.Tiwari vs. Union Of INDIA And Ors
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The petitioner, S.N. Tiwari, filed a writ petition challenging an order dated December 7, 2023, passed by the Superintendent (Range-III), Andaman and Nicobar Division, Haldia CGST & CX Commissionerate. The petitioner contended that while a notice was issued under Section 73 of the Central Goods and Services Tax Act, 2017, the final order was passed invoking both Sections 73 and 74 of the Act. The petitioner also questioned the manner in which the notice was served. The respondents, represented by Mr. Vipul Kundalia, argued that the show cause notice was appropriately served, relying on Section 169 of the Act.
Held
The High Court noted that Section 107 of the CGST Act, 2017, provides for an appeal against any decision or order passed under the Act. Observing the availability of an efficacious alternative remedy, the Court granted the petitioner leave to prefer an appeal under Section 107 of the Act against the order dated December 7, 2023. The appeal is to be filed within a fortnight from the date of the order. If filed within this period, the appellate authority is directed to decide the appeal on its merits, without raising the issue of limitation, within twelve weeks thereafter. The writ petition was disposed of in light of this direction.
Key Issues
1. Whether the impugned order dated December 7, 2023, passed by the Superintendent is valid, given that the notice was issued under Section 73 of the CGST Act, 2017, but the order invoked both Sections 73 and 74 of the Act? 2. Whether the service of notice upon the petitioner was in accordance with the provisions of the CGST Act, 2017? Petitioner's contentions: The petitioner argued that the order passed under Sections 73 and 74, when the notice was only under Section 73, renders the order invalid. The petitioner also questioned the procedural propriety of the notice service. Revenue's contentions: The respondents contended that the show cause notice was served appropriately upon the petitioner, relying on Section 169 of the CGST Act, 2017.
Sections Cited
Section 73, Section 74, Section 107, Section 169
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IN THE HIGH COURT AT CALCUTTA [ CIRCUIT BENCH AT PORT BLAIR ] ***
WPA/8/2025 [through virtual mode]
Ms. K. Bhawani
… for the petitioner
Mr. Vipul Kundalia, Sr.Adv. Mr. Ayanabha Rao, Mr. Anindya Kanan
… for the respondent nos.2,4,5 [through virtual mode ] February 07, 2025 [SR] Item no. 6
By presenting this writ petition, inter alia, challenge has been thrown to the order dated 7th December, 2023 passed by the Superintendent (Range-III), Andaman and Nicobar Division Haldia CGST & CX Commissionerate. It has been agitated by the learned advocate representing the petitioner while questioning the validity of the impugned order dated 7th December, 2023 that though notice was issued under section 73 of the Central Goods and Services Tax Act, 2017 (hereinafter referred as the said “Act of 2017”) but order was passed under sections 73 & 74 of the aforesaid Act of 2017. Manner of serving notice upon the petitioner is also questioned in this writ petition.
Mr. Kundalia, learned senior advocate representing the respondents has disputed the contention of the petitioner that show cause notice was not appropriately served upon the petitioner upon placing reliance on section 169 of said Act of 2017. 3. However, on perusal of the relevant provisions of the said Act of 2017, it appears that under section 107, there is a provision to prefer an appeal against any decision and/or order passed under the said Act of 2017. 4. In view of availability of efficacious alternative remedy, this Court grants leave to the petitioner to prefer an appeal under section 107 of the said Act of 2017 against the order dated 7th December, 2023 by fortnight from date. If appeal is preferred within the aforesaid time, the appellate authority without raising the issue of limitation shall decide the same on merits in accordance with law by twelve weeks thereafter.
Hence writ petition stands disposed of.
Urgent photostat certified copy of this order, if applied for, be supplied to the learned advocate appearing for the parties upon compliance of usual formalities.
( Saugata Bhattacharyya, J. )
Reproduced from the public record of the Calcutta High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.