The Calcutta High Court has held that the Central Goods and Service Tax (CGST) Superintendent has no jurisdiction to issue a show cause notice (SCN) under section 61 of the Central Goods and Service Tax Act, 2017( CGST Act).
M/s. Gopeshwar Iron and Steel Works Private Limited and Anr., the appellant questioned as that whether the respondent authority can proceed further under the notice dated 17.04.2023 purported to have been issued under Section 61 of the CGST Act, 2017.
The Audit Department had issued a notice dated 5th April 2021 and called for several documents which were submitted by the appellants after being satisfied with the documents placed, the Audit Department closed the case and approved by proceeding dated 25.03.2022.
In the same period, the DGGI has already issued a summons and the appellants have submitted documents and the matter is pending before the DGGI. It was submitted that Section 61 of the CGST Act deals with scrutiny of returns and in terms of sub-section (3) of Section 61 in case no satisfactory explanation is being furnished by the assessee or the assessee claims to take corrective measures in his return, the appropriate officer may ensure appropriate action including those under Section 65 of the Act.
The Superintendent, CGST & Central Excise, L will have no jurisdiction to issue the notice dated 17.04.2023 which was impugned in the writ petition. Furthermore, it is submitted that the notice dated 17.04.2023 issued by the Superintendent, Range 1 the documents which have been called for are identically settled by the department which was called for by the Audit Department which was furnished, considered and the Audit Department has been approved and settled and, therefore, it is the case for the appellants that the notice dated 17.04.2023 is without jurisdiction.
The standing counsel appearing for the respondents submitted that directions have been received from the Analytical Wing of the Department and this has necessitated the Superintendent to issue the notice dated 17.04.2023.
While allowing the appeal, the Court comprising Chief Justice T S Sivagnanam and Justice Hiranmay Bhattacharyya held that “the notice issued by the Superintendent, CGST & Central Excise, L-1, Circle-III, Durgapur 1 Division, Durgapur dated 17.04.2023 shall remain stayed till the disposal of the writ petition being WPA 10506 of 2023. The respondent is directed to file the affidavit-in-opposition in the writ petition after which the writ petition will be heard and disposed of on merits and by law. “
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