The Bombay High Court recently ruled that mere quotation of an incorrect section is not sufficient to hold that the notice is without jurisdiction. If the notice can be sustained by reference to the correct provision, then the Writ Court is not obliged to interfere with the notice only because some incorrect provision may have been invoked or quoted.
The ruling came in relation to the challenges against the adjudication orders passed pursuant to notices under Section 74 of the CGST Act, claiming that the impugned show cause notice, as well as the impugned adjudication orders, refer to no allegations of fraud, wilful misstatement, or suppression of facts to evade tax. It was essentially claimed that in the absence of these jurisdictional allegations, the notice under Section 74 was incompetent and consequently, even the impugned adjudication orders are liable to be declared as without jurisdiction.
The Division Bench comprising Justice M.S. Sonak and Justice Jitendra Jain observed that, in any event, a show cause notice could always be competent under Section 73 of the CGST Act as long as it is issued within the three years prescribed under Section 73(10) of the CGST. The Bench also clarified that for a notice under Section 73 of the CGST Act, there is no requirement of alleging fraud, wilful misstatement, or suppression of fact.
The Bench added that the present case does not appear to be a case where the impugned notice can be held to be ex facie without jurisdiction, or that this is some exceptional case based upon which the petitioners need not be relegated to the alternate remedy which they have already invoked. Accordingly, the Bench dismissed the petition and refused to allow the petitioner to bypass the alternate, efficacious, and statutory appellate remedy.
Appearances:
Advocates Nitesh V. Bhutekar and Prathamesh Mandlik, for the Petitioner/ Taxpayer
Advocates Shruti D. Vyas, Aditya R. Deolekar, Jitendra B. Mishra, Mamta Omle, and Rupesh Dubey, for the Respondent/ Revenue
