The High Court · 2024
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Civil Writ Jurisdiction) WP(T) No. 192 of 2024 M/s Prakash Paint, a proprietorship firm, through its proprietor, Om Prakash Saw, aged about 52 years, son of late Teja Saw, resident of Road No. 3, Baddhi Muhalla, Vidya Nagar, Harmu, PO Harmu, PS Sukhdeo Nagar, ...… Petitioner District Ranchi 834002 Versus 1.State of Jharkhand through Secretary-cum-Commissioner of State Tax, Jharkhand Goods and Service Tax having its office at Excise Building, Kanke Road, PO Ranchi University, PS Gonda, District Ranchi 834008 2.Deputy Commissioner of State Tax, Ranchi West Circle, having its office at Commercial Taxes Department, Court Compound, PO Kutchery, PS Kotwali, District Ranchi 834001 3.State of Tax Officer, Special Circle, Ranchi having its office at Commercial Taxes Department, Court Compound, PO Kutchery, PS Kotwali, District Ranchi 834001 …. ... Respondents CORAM: HON'BLE THE ACTING CHIEF JUSTICE
Legal Reasoning
HON'BLE MR. JUSTICE NAVNEET KUMAR For the Petitioner For the Respondents : Mr. Sanjay Kumar Prasad, Advocate : Mr. Rishabh Kaushal, AC to GP-II Order No.2/Dated: 13th March 2024 Aggrieved by the order in FORM GST DRC-07 vide Reference No. 16358 dated 28th December 2023, M/s Prakash Paint through its proprietor has approached this Court alleging that the said order is illegal, arbitrary and malafide and passed in violation of natural justice. 2. The petitioner-Firm has pleaded that it received a phone call on 27th December 2023 intimating him that show-cause notice for the financial years 2017-18 and 2018-19 are being sent to it at its registered Email ID. On verification, the petitioner-Firm found that a show-cause notice was sent to its registered Email ID in FORM GST DRC-1 under section 73(1) of the Jharkhand Goods and Service Tax Act, 2017 (in short, JGST Act) and a reply thereof was sent on 29th December 2023 on the very next date of the date of knowledge. However, before that, the impugned order came to be passed on 28th December 2023 imposing tax, interest and penalty amounting to Rs. 1,72,073.67/-. 3. Mr. Sanjay Kumar Prasad, the learned counsel for the petitioner-Firm submits that the impugned order was passed before the 2 WP(T) No. 192 of 2024 period of 15 days could expire and the petitioner-Firm has therefore not been given a fair opportunity to put forth its defence to the show-cause notice dated 13th December 2023. The learned counsel for the petitioner- Firm refers to the “CCE v. I.T.C. Ltd.” (1995) 2 SCC 38 to submit that personal hearing is necessary before saddling an assesse with additional demands. The learned counsel has also referred to an order passed in “Raymond Limited v. Union of India” 2023 LiveLaw (MP) by Madya Pradesh High Court, to challenge the order dated 13th December 2023 on the ground that no reasonable opportunity was afforded to the petitioner- Firm. 4. In the first place, a challenge to the show-cause notice, charge memo or charge-sheet is generally not entertained in a proceeding under Article 226 of the Constitution of India. There is a sound policy in law behind this rule of non-interference that the aggrieved person should first avail of the remedy provided under the statutory regime. The impugned order dated 28th December 2023 passed by the State of Tax Officer, Special Circle, Ranchi is appealable under section 107 of the GST Act and under section 107 of the JGST Act. 5. In “Union of India v. Kunisetty Satyanarayana” (2006) 12 SCC 28, the Hon’ble Supreme Court observed as under: “13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge-sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh, Special Director v. Mohd. Ghulam Ghouse, Ulagappa v. Divisional Commr., Mysore, State of U.P. v. Brahm Datt Sharma, etc. 14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show- cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ petition lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of anyone. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance. 15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show- cause notice or charge-sheet. 16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly 3 WP(T) No. 192 of 2024 without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter.” 6. Secondly, the summary of show-cause notice is dated 13th December 2023. Through this notice, the petitioner-Firm was intimated that within 15 days if it deposits the assessed amount or provides satisfactory reply the notice shall be withdrawn. Now the stand of the petitioner-Firm is that it submitted a detailed show-cause reply dated 29th December 2023 but before that the impugned order dated 28th December 2023 has been passed. The petitioner-Firm however did not make a statement as regards mode of submitting show-cause reply dated 29th December 2023 vide Annexure-2. There is of course a stamp at the first page bearing date 29th December 2023, but then, this is not correct to say that the petitioner-Firm received the show-cause notice on 27th December 2023. The notice is dated 13th December 2023 and the petitioner-Firm itself affirms that the said notice was mailed on 16th December 2023 in FORM DRC-1. 7. Having regard to the aforementioned factual scenario, the petitioner-Firm is required to approach the appellate authority who shall have the benefit of the records and would be in a better position to adjudicate the disputes on facts. 8. Therefore, this Court is not inclined to entertain the present writ petition which is dismissed only on the ground that no case is made out for entertaining this petition notwithstanding the statutory regime under the JGST Act. 9. WP(T) No. 192 of 2024 is dismissed, without going into the merits of the matter. (Shree Chandrashekhar, A.C.J.) (Navneet Kumar, J.) Tanuj/A. Mohanty