Awadesh Singh vs. Assistant/Deputy Comm Central Tax Shibpur Division Howrah CGST And Cx
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The appellant, Awadesh Singh, filed an intra-Court appeal against an order dated 1st August, 2024, passed by a learned Single Bench. The original writ petition challenged a show-cause-cum-demand notice dated 28th December, 2020, issued under Section 73(1) of the Finance Act, 1994. During the pendency of the writ petition, the show-cause notice was adjudicated, and an order was passed on 31st January, 2022. The learned Single Bench opined that the appellant should avail the alternate remedy available under the Act, leading to the present appeal.
Held
The Court agreed with the learned Single Bench that the challenge to a show-cause notice cannot be maintained at this stage, especially after it has been adjudicated and an order has been passed. The reasoning was that the adjudication order supersedes the show-cause notice, and the appropriate course of action for the appellant is to challenge the adjudication order itself through the statutory appellate mechanism. The Court clarified that the appellant is free to raise all points, including the sustainability of the show-cause notice, before the appellate authority when preferring an appeal against the adjudication order dated 31st January, 2022. The appeal and connected application were dismissed. However, the Court granted an extension of time, allowing the appellant to file the statutory appeal within 30 days from the receipt of the order, which would not be rejected on grounds of limitation.
Key Issues
1. Whether the challenge to a show-cause notice can be maintained when it has already been adjudicated and an order has been passed. The appellant argued that the show-cause notice itself was not sustainable. The revenue/State did not record specific arguments but implicitly supported the adjudication process and the availability of alternate remedies. The court had to decide if the writ petition was maintainable in light of the subsequent adjudication order.
Sections Cited
Section 73(1)
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Cause title — parties, addresses and appearances
JUDGMENT (Judgment of the Court was delivered by T.S. SIVAGNANAM, C.J.)
Affidavit-of-service filed in Court today is taken on record.
This intra-Court appeal filed by the writ petitioner is directed against the order dated 1st August, 2024 passed in W.P.A. 18595 of 2022. In the said writ petition, the appellant had challenged the show-cause-cum-demand notice dated 28th December, 2020 issued under Section 73(1) of the Finance Act, 1994. 3. The learned advocate for the appellant submitted that the show-cause notice itself is not sustainable. However, during the pendency of the matter, the show-cause notice has been adjudicated and an order has been passed on 31st January, 2022. 4. Therefore, the learned Single Bench opined that the appellant should avail the alternate remedy available under the Act.
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We are in full agreement with the finding rendered by the learned Single Bench since the challenge to a show-cause notice cannot be maintained at this stage, especially when the show-cause notice has been adjudicated and an order has been passed on 31st January, 2022. 6. Therefore, we find no ground to interfere with the impugned order and we clarify that it will be well-open to the appellant to raise all points including the issue that it is not a case, where a show-cause notice could have been issued to the appellant/assessee while preferring an appeal before the appellate authority against the adjudication order dated 31st January, 2022. 7. With these above observations, appeal and the connected application (CAN 1 of 2024) stand dismissed.
Learned advocate for the appellant requested that the time for filing the appeal may be extended.
In the light of the above, if the appellant files the statutory appeal before the appellate authority within 30 days from the date of receipt of server copy of this order, the appeal shall not be rejected on the ground of limitation but, shall be heard and decided on merits and in accordance with law.
No costs.
Urgent photostat certified copy of this order, if applied for, be furnished to the parties expeditiously upon compliance of all legal formalities.
(T.S. SIVAGNANAM) CHIEF JUSTICE I agree. (HIRANMAY BHATTACHARYYA, J.) Pallab/KS AR(Ct.)
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.