Bishnupada Ghosh vs. Assistant Commissioner Of Revenue, Siliguri Audit Cercle-V And Ors

Facts

The petitioner, Bishnupada Ghosh, filed a writ petition challenging a show-cause notice dated June 5, 2023, issued under Section 16(4) of the CGST Act. The petitioner also challenged the constitutional validity of this provision. The CGST authority argued that the writ petition was not maintainable as the petitioner had approached the court at the show-cause notice stage without filing a reply. They further contended that the constitutional validity of Section 16(4) had already been upheld by a Division Bench of the same High Court in the case of BBA Infrastructure Limited Vs. Senior Joint Commissioner of State Tax & Ors.

Held

The Court held that the writ petition was not maintainable at the stage of a show-cause notice. It noted that the petitioner had approached the court without filing a reply. Furthermore, the Court referred to a previous judgment by a Division Bench of the same High Court in the case of BBA Infrastructure Limited Vs. Senior Joint Commissioner of State Tax & Ors., which had upheld the constitutional validity of Section 16(4) of the CGST Act. Consequently, the Court was not inclined to grant any relief to the petitioner on the merits of the case. However, to allow the petitioner an opportunity to respond, the Court extended the time for filing a reply to the show-cause notice by two weeks from the date of the order. The Court clarified that it had not adjudicated on the validity or legality of the notice itself, leaving it to the concerned authority to decide in accordance with the law after considering the petitioner's reply.

Key Issues

1. Whether the writ petition is maintainable at the stage of a show-cause notice, particularly when the petitioner has not yet filed a reply. 2. Whether the constitutional validity of Section 16(4) of the CGST Act is open to challenge in this writ petition. Contentions of the Petitioner: The petitioner challenged the show-cause notice and the constitutional validity of Section 16(4) of the CGST Act. Contentions of the Revenue (CGST Authority): The CGST authority argued that the writ petition was not maintainable because the petitioner had not filed a reply to the show-cause notice. They also submitted that the constitutional validity of Section 16(4) had already been upheld by a Division Bench of this Court in the case of BBA Infrastructure Limited (supra).