Writ petition filed before the passing of the final order is premature and not maintainable

The Hon'ble Madras High Court in the matter of Geethanjali v. the Assistant Commissioner of CGST & CE [W.P. No.35024 of 2022 and W.M.P. Nos. 34458 and 34461 of 2022 dated February 7, 2023]has held that the petition filed by the assessee challenging the Show Cause Notice ("SCN") for reversal of Input Tax Credit ("ITC") even before the final order has been passed, is considered to be premature and cannot be entertained. Directed the Revenue Department to consider the reply submitted by the assessee and decide on merits and in accordance with law.

Facts

Geethanjali ("the Petitioner") was presented with a SCN dated December 12, 2022 ("the Impugned SCN") by the Revenue Department ("the Respondent") on account of a mismatch, to intimate the Petitioner about the amount it is liable to pay towards GST in respect of certain tax invoices. It is alleged in the Impugned SCN that though the ITC in respect of the aforementioned invoices has been claimed by the Petitioner, the supplier has not paid the tax amounts to the Respondent. The Petitioner has furnished a detailed reply to the Impugned SCN on January 6, 2023 and such reply has been acknowledged by the Respondent on the same date.

Being aggrieved, this petition has been filed.

The Petitioner has contended that despite having furnished the details of the supplier to the Respondent in respect of the aforementioned invoices, the Respondent has once again sent the impugned notice to the Petitioner. Further, the Petitioner's reply to the Impugned SCN has not been considered by the Respondent. Further that, only in case of collusion between the Petitioner and the supplier, the Respondent can proceed against the Petitioner.

Issue

Whether the Impugned SCN is liable to be quashed before passing of final order?

Held

The Hon'ble Madras High Court in W.P. No.35024 of 2022 and W.M.P. Nos. 34458 and 34461 of 2022 held as under:

• Observed that, the Petitioner has only challenged the Impugned SCN and no final order has been passed by the Respondent.
• Noted that, the Petitioner has filed this petition prematurely as final order relating to the Impugned SCN has not been passed.
• Further noted that, the Respondent needs to consider the reply submitted by the Petition in respect to the Impugned SCN on merits and in accordance with law.
• Held that, the Impugned SCN has only made an intimation about the proposal to reverse the ITC availed by the Petitioner and no final order has been passed, therefore, the question of entertaining such petition will not arise.
• Directed the Respondent to consider the reply submitted by the Petitioner and decide on merits and in accordance with law.