Shashank Garg vs. Additional Commissioner, Central Goods And Service Tax Commissionerate, Rohtak
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The petitioner, Shashank Garg, is before the Punjab and Haryana High Court for the third time concerning the same matter. Previously, he filed CWP-9948-2024 challenging a show cause notice under Section 122 of the CGST Act, which is pending. He then filed CWP-11953-2024 assailing a show cause notice under Section 74(1) of the CGST Act, which was dismissed on May 21, 2024. This dismissal was challenged before the Supreme Court via SLP (C) No(s). 15899/2024, which was dismissed as withdrawn on July 26, 2024, with liberty to the petitioner to take all available contentions in his replies to the show cause notices. The present writ petition, CWP-18005-2024, does not seek to quash the show cause notice but prays for it to be issued electronically as per Rule 142(1)(a) of the CGST/HGST Rules, 2017, and for the petitioner to be allowed to file his reply electronically.
Held
The Court held that the present writ petition constitutes a gross abuse of the process of law. It found that the petitioner's argument regarding the electronic issuance of the show cause notice could have been examined by the Apex Court, and even the Supreme Court had directed the petitioner to file his reply, which he failed to do, opting instead to file this writ petition. The Court reasoned that provisions of law cannot be twisted for the convenience of individuals found to be prima facie utilizing fraudulent Input Tax Credits (ITCs). The Court dismissed the writ petition, imposing costs of Rs. 50,000/- on the petitioner, to be deposited with the CGST Authorities. No issue was expressly left undecided; the petition was dismissed on procedural grounds and abuse of process.
Key Issues
1. Whether the failure to issue the show cause notice electronically, as per Rule 142(1)(a) of the CGST/HGST Rules, 2017, invalidates the notice, and if so, should the petitioner be permitted to file his reply electronically? Petitioner's Contention: The petitioner argues that the show cause notice should have been issued electronically in compliance with Rule 142(1)(a) of the CGST/HGST Rules, 2017, and that he should be allowed to file his reply electronically. He seeks this procedural compliance. Revenue's Contention: The revenue contends that issuing the show cause notice via email does not invalidate it. They argue that the petitioner is attempting to delay the proceedings under Section 74(1) of the CGST Act, 2017, by raising this technicality. Allowing the petitioner's prayer would necessitate issuing a fresh notice electronically, restarting the time limitation. The revenue also points out that the Supreme Court, while dismissing the SLP, directed the petitioner to file his reply, which he has not done.
Sections Cited
Section 122, Section 74(1), Rule 142(1)(a)
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Cause title — parties, addresses and appearances
following order:- “ Learned senior counsel sought permission to withdraw this Special Leave Petition. His submission is placed on record. The Special Leave Petition is dismissed as withdrawn. Since the High Court has reserved liberty to the petitioner to file replies to the Show Cause Notices, it is needless to observe that the petitioner is at liberty to take all available contentions in the replies to be filed to the Show Cause Notices.”
The present writ petition has been filed again, although not to seek quashing of the show cause notice, but praying for the show cause notice to be issued electronically keeping in view the provisions contained under Rule 142(1)(a) of the CGST/HGST Rules, 2017 and further submits that he be allowed to file the reply electronically alone.
On the other hand, learned Senior Standing counsel for the revenue, appearing on advance notice, submits that the revenue is not prevented from issuing the show cause notice under Section 74 of the CGST Act, by e-mail, and merely, because electronically show cause notice has not been issued, the same cannot be treated as invalid in any terms and the petitioner is not prevented from filing reply to the show cause notice through e-mail.
Learned Senior Standing Counsel further submits that the petitioner is only trying to delay the proceedings in one pretext or the other seeks to get proceedings delayed of the show cause notice issued under Section 74(1) of the CGST Act, 2017. If the prayer of the petitioner is JAWALA RAM 2024.08.01 17:02 I attest to the accuracy and authenticity of this document
CWP-18005-2024 allowed, then the revenue will have to issue fresh notice through electronically mode and the time limitation would also set afresh.
We do not propose to give such means to the petitioner. The provisions of law cannot be allowed to be twisted for the convenience of persons, who have been found to be prima facie utilizing the fraudulent ITCs.
We also noticed that if the present argument was to be taken, the same could have been examined by the Apex Court and even the Supreme Court has directed the petitioner to file his reply, which he has not chosen to do, and preferred, the present writ petition.
In view of above, we find the filing of present writ petition is a gross abuse to the process of law. Accordingly, we dismiss the writ petition by imposing costs of Rs.50,000/- upon the petitioner, to be deposited with the CGST Authorities. Pending application(s), if any, also stands disposed of. (SANJEEV PRAKASH SHARMA) JUDGE (SANJAY VASHISTH) JUDGE July 31, 2024 J.Ram Whether speaking/reasoned: Yes/No Whether Reportable: Yes/No JAWALA RAM 2024.08.01 17:02 I attest to the accuracy and authenticity of this document
Reproduced from the public record of the Punjab and Haryana High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.