The High Court · 2025

Petition under Article 226 of the Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue writ of lvandamus or any other appropriate writ or order or Direction declaring the action of the 1't Respondent in passing the Order-in- original. dated 05.02.2025 for the tax period 2017-'l 8 to 2021-22 Under Section 74 of CGST/SGST Acts, 2017 instead of section 73 of CGST/SGST Acts' 20'l 7 without satisfying any ingredients for the extended period of limitation to the said Section 74 as arbitrary, contrary to the provisions of the Acts, barred by the limitation, without DIN not even issuing prior Notice as per Rule 1a2 (A) ol cGST/SGST Rules, 2017, without jurisdiction and in violation of Principles of Natural Justice and Rule of law and consequently set aside the order-in-original dated 05-02-2025 passed by the 1st Respondent under Section 74 instead of passing under Section 73 of the CGST/SGST Acts 20 17, as null and void. lA NO: 1 OF 2025 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to Suspend the Operation of the Order-in-Original, dated 05.02.2025 passed by the 1St Respondent for the tax periods 2017-18 to 2021-22 under the CGST/SGST Act 2017, pending disposal of the above Writ Petition, as otherwise, the Petitioner will be put to severe loss and hardship. Counsel for the Petitioner: SRI SHAIK JEELANI BASHA Counsel for the Respondent No.1: SRI DOMINIC FERNANDES (senior standing counsel for CBIC) Counsel for the Respondent No.2: SRI B. MUKHERJEE, SC The Court made the following: ORDER THE HON'BLE THE CHIEF JUSTICE SRT APARESH KUMAR SINGH AND THE HON'BLE SRI JUSTICE G.M.MOHIUDDIN WRIT PETITION No.2OO64 of 2o25, ORDER: Mr. Shaik Jeelani Basha, learned counsel lor the Dctllloner Mr. Dominic Fernandes, learned Senior Standing Counsel for Central Board of Indirect Taxes and Customs (CBIC) appears for respondent No. 1 N{r. B.Mukherjee, learned counsel for respondent No.2

2. Fleard learned counsel for the parties

3. The impugned order-in-original is

05.02.2025 passed on the basis of a show cause notice dated

28.O3.2024 whereby the respondent No.1 has dropped certain demands and confirmed certain demands of CGST and SGST in a proceeding under Section 74 of the Central Goods and Services Tax Act, 2OI7 (hereinafter referred to as ,the CGST Act'). [t has also imposed interest liability and penalty upon tlie petitioner. )

4. Learned counsel lor the petitioner inter alia has taken a number of qrounds that the order in original dated

05.O2.2025 is not valid in thc cve of 1au. as it does not contain any DIN number. It is further submitted that a composite order in-original has been passed for a number of years r.e., from 20L7-18 tllrl 2021 22 which is not proper in the eye of 1aw. It is further submitted that the intimation under Rule 142(IAl of the Central Goods and Services Tax (CGST) Ru1es, 2017 (hereinafter referrcd to as 'the CGST Rules') has not bccn issued. Therefore. the shori causc notice in GST DRCO 1 is not valid in the eye of lau,. Therefore, the impugned order rray be interfered.

5. Learned Senior Standing Counsel for CBIC has straight away pointed out from paragraph No.11 of the order-in-original dated 05.O2.2025 that DRCO 1A u'as issued on 06.O9.2O2ll in favour of thc petitioner before issuance of the proceedings under Section 7a(l) of the CGST Act. Therefore, that statement is not correct. The writ petition does not annex the intimation in Form DRC0 1A. The summary of the order in DRC07 is also not annexed to the writ petition J

6. Learned Senior Standing Counsel for CBIC has submitted that as per Section T4(IO) read with Sub-section (2) of the CGST Act, the Assessing Officer is under a duty to pass order within a period of five years from the due date of furnishing of annual return for the financial year to which tax is not paid or short paid or ITC wrongly availed or utilised. Sub-Section (2) of Section Z4 of the CGST Act mandates issuance of a notice at least six months prior to the time iimit specified in Sub Section (10) of Section T4 for issuance of the order. It is submitted by reference to the Notification No.6 of 2O2O dated O3.O2.2O2O that the last date for furnishing annual returns for the hnalcial year 2OI7-lB was extended to O7.O2.2O2O. Similarly by Notification No.gO of 2020 dated

28.10 .2O2O , the last date for furnishing alnual returns for financial year 201B 19 was extended up to 31.12.2O2O. Therefore, even for the financial year 2OlT-1g, the order could be passed rvithin five years from the date of firing of the annual returns which is February, 2025. In the instant case, the show cause notice has been issued for all the financial years on 28.03.2024 which is well within the time line prescribed under Section 74(lOl of the CGST Act and read with the -1 Notification Nos.6 of 2O2O and BO of 2O2O even for financial - years 2O 17- 18 and 2O 1B- 19. It is submitted that the petitioner has instead of availing the rcmcdl' of appeal uncler Section 107 of the CGST Act, approached this Court after delay. Therefore, the writ petition may not be entertained. 7 . Upon consideration of the rival submissions of the parties and after taking note of Lhc relevant materials placed on record, rve are of the considered vier,rr that the petitioner has not availed the remedy ol appeal before approaching this CourL. Some of the conten tions of the petitioner that the DRCO 1A was not issued is also incorrect. Moreover, the summary of the show causc notice allegcd to be without DIN number has also not bcen anncxed. In such ciircumstances, this Court is not inclined to invoke its ,"r,rit j urisdiction. In such a case, petitioner may have the liberty to prefer an appeal as is permissible in 1au,.

8. The writ petition r,vas preferred on 02.O5.2025.

9. Learned counsel lor the petitioner submits that the writ petition was filed well u,ithin time for preferring the appeal under Section 107 of the CGST Act on 02.O5.2025. Therefore. the appellate Authority may be directed to condone the delay taking into account the time spent in pursuing the writ petition before this Court.

10. Accordinglv, it is observed that since the writ pctition rn,as filed ri rthin the time prescribed for filing an appeal under Section i 07 read u,ith Sub-Section (4) of the CGST Act, the appellate authoritv u,ould consider the question of delay taking into account the pendency of the matter before this Court. 1 1. Writ petition is, accordingly, dismissed. However, there shall be no ordcr as to costs. Let it be made clear that we have not gone into the merits of the case of the parties Miscellaneous applicatron s pending, if any, sha1l stand cio sed. //TRUE COPY// SD P. PONNA KRISHNA S STANT REGISTRAR SECTION OFFICER 1 2 J 4 One CC to Sri Shaik Jeelani Basha, Advocate [O One CC to Sri Dominic Fernandes (senior standing counsel for CBIC) loPUCl One CC to Sri B. t\/ukherjee, SCIOPUCI Two CD Copies CI To, TJ LS HIGH COURT DATE D: 1 8l0gl?021 ORDER WP.No.20064 of 2OZs ,27. ; rti .s' ,/.7"* .,,,(. (- ) 2 4 SEP zn25 'sl -._-:::_._,_-, DISMISSING THE WRIT PETITION WITHOUT COSTS 1nl*