Nitin Tibrewal Vs Union of India (Chhattisgarh High Court)
Summary : The Chhattisgarh High Court, in Nitin Tibrewal Vs Union of India, examined the maintainability of writ petitions challenging a GST show cause notice before completion of adjudication proceedings. The petitioners, Nitin Tibrewal, Kamal Kishore Rathi and Nitish Diwan, challenged the show cause notice dated 26 August 2026 and its corrigendum dated 27 August 2026, issued by the Directorate General of GST Intelligence under Section 74 of the SGST Act, 2017, read with the CGST Act, 2017. The notice proposed penalties under Sections 122(1A), 122(3) and 125 of the CGST Act, 2017, read with Section 20 of the IGST Act, 2017, for alleged acts of omission and commission detailed in the notice. The petitioners contended that the proceedings violated the principles of natural justice and fair play because adequate opportunities of hearing had not been provided.
The Revenue opposed the writ petitions, submitting that the impugned show cause notice itself afforded the petitioners an opportunity to file replies, produce supporting documents and evidence, and seek personal hearings before the adjudicating authority. The notice also specified that failure to respond or appear could result in ex parte adjudication based on the available evidence. The Department argued that the petitioners had approached the High Court prematurely without exhausting the procedural opportunities available during adjudication. It further submitted that any adverse order imposing penalties under the GST legislation could be challenged through the statutory appellate remedy provided under Section 107 of the CGST Act, 2017. Consequently, the Revenue maintained that direct interference under Article 226 of the Constitution was unwarranted at the show cause notice stage.
The High Court examined Section 107 of the GST Act, which provides an appellate mechanism against decisions or orders passed by adjudicating authorities. It relied upon the Supreme Court’s judgment in Assistant Commissioner of State Tax and Others v. Commercial Steel Limited, (2022) 16 SCC 447, wherein the Supreme Court held that the existence of an alternative statutory remedy does not constitute an absolute bar to writ jurisdiction under Article 226. However, such jurisdiction should ordinarily be exercised only in exceptional circumstances involving breach of fundamental rights, violation of principles of natural justice, excess of jurisdiction, or a challenge to the constitutional validity of legislation or delegated legislation. Applying these principles, the High Court observed that the petitioners had challenged the show cause notice without submitting their replies, permitting adjudication to proceed, or subsequently availing themselves of the statutory appellate remedy. The Court held that writ petitions against show cause notices are ordinarily not maintainable unless exceptional grounds, including jurisdictional error or lack of competence of the issuing authority, justify interference.
Accordingly, the High Court dismissed all three writ petitions as premature and not maintainable, considering the availability of statutory remedies under the GST legislation. Nevertheless, the Court directed the respondent authorities to comply with the provisions of the GST Act in letter and spirit and provide the petitioners adequate opportunities of hearing before determining their tax liability. The petitioners were also directed to cooperate with the adjudication proceedings, refrain from seeking unnecessary adjournments and facilitate expeditious disposal. The decision reiterates that taxpayers should ordinarily respond to GST show cause notices and pursue the prescribed adjudication and appellate procedures rather than directly invoking writ jurisdiction, unless recognised exceptional circumstances warrant judicial intervention.
Cases Discussed
Assistant Commissioner of State Tax and Others v. M/s Commercial Steel Limited — (2022) 16 SCC 447 (Supreme Court). Relied upon for the limited exceptions to the alternative-remedy rule; paragraphs 11–13 quoted.
FULL TEXT OF THE ORDER OF CHHATTISGARH HIGH COURT
1. Since common question of law and facts are involved in these writ petitions, they are heard analogously and are being disposed of by this common order. The facts of WPT No. 173 of 2026 is taken as lead case.
2. The petitioners have filed this writ petition under Article 226 of Constitution of India assailing the show cause notice No. 13/RZU/JD/GST/2026-27 dated 26.08.2026 under Section 74 of the SGST, 2017 read with CGST, 2017 issued by respondent No.2 Joint Director of GST indigence wherein GST Department has issued show cause notice to various persons including the petitioners as to why penalty should not be imposed upon them under Section 122(1A), 122(3) and 125 of the CGST Act, 2017 read with Section 20 of the IGST Act for their act of omission and commission as detailed in the show cause notice. The petitioners have also challenged the corrigendum dated 27.08.2026 to the show cause notice in this petitions.
3. Learned counsel for the petitioners would submit that without giving opportunities of hearing the same has been issued to them, as such violation of principle of natural justice, fair play and also against the provisions of GST Act.
4. On the other hand, learned counsel for the respondents would submit that under GST Act, various opportunities were provided to the petitioners to submit reply to the show cause notice. He would further submit that by the said notice the noticee are directed to produce all the evidence upon which they intent to reply in support of their defense. The notice further provides that the noticee should also indicate in their return/reply weather they which to be heard in person before the case adjudicate. It is further mentioned in the notice that if the noticee is unable to response to the notice or do not appear before the adjudicated authority when the case is posted for hearing the case will be decided ex-parte on the basis of evidence available on record. He would further submit that the record relied upon by the DGGSTI for the purpose of issuance of notice are listed in the addendum attest to the notice.
5. He would further submit that from perusal of notice itself, it is show cause notice and opportunity has already been extended to the petitioners to submit the reply or to place on document on record, as such the writ petitions against show cause notice are not maintainable. He would submit that under the GST Act, even if any order is passed under Sections 122(1A), 122(3) and 125 of the CGST Act, 2017 read with Section 20 of the IGST Act, the remedy of appeal under Section 107 of the GST Act before the Appellate Authority, thus he would submit that the writ petitions against the show cause notice are not maintainable and would pray for dismissal of the petitions.
6. I have heard learned counsel for the parties and perused the record and consider the provisions of Section 107 of the GST Act which reads as under:-
Section 107. Appeals to Appellate Authority.-
(1) Any person aggrieved by any decision or order passed under this Act or the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act by an adjudicating authority may appeal to such Appellate Authority as may be prescribed within three months from the date on which the said decision or order is communicated to such person.
(2) The Commissioner may, on his own motion, or upon request from the Commissioner of State tax or the Commissioner of Union territory tax, call for and examine the record of any proceedings in which an adjudicating authority has passed any decision or order under this Act or the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act, for the purpose of satisfying himself as to the legality or propriety of the said decision or order and may, by order, direct any officer subordinate to him to apply to the Appellate Authority within six months from the date of communication of the said decision or order for the determination of such points arising out of the said decision or order as may be specified by the Commissioner in his order.
(3) Where, in pursuance of an order under sub-section (2), the authorised officer makes an application to the Appellate Authority, such application shall be dealt with by the Appellate Authority as if it were an appeal made against the decision or order of the adjudicating authority and such authorised officer were an appellant and the provisions of this Act relating to appeals shall apply to such application.
(4) The Appellate Authority may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months or six months, as the case may be, allow it to be presented within a further period of one month.
(5) Every appeal under this section shall be in such form and shall be verified in such manner as may be prescribed.
(6) No appeal shall be filed under sub-section (1), unless the appellant has paid-
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- in full, such part of the amount of tax, interest, fine, fee and penalty arising from the impugned order, as is admitted by him; and
- a sum equal to ten per cent. of the remaining amount of tax in dispute arising from the said order, 1[subject to a maximum of 3[twenty] crore rupees], in relation to which the appeal has been filed.
[Provided that in case of any order demanding penalty without involving demand of any tax, no appeal shall be filed against such order unless a sum equal to ten per cent. of the said penalty has been paid by the appellant.]
(7) Where the appellant has paid the amount under sub-section (6), the recovery proceedings for the balance amount shall be deemed to be stayed.
(8) The Appellate Authority shall give an opportunity to the appellant of being heard.
(9) The Appellate Authority may, if sufficient cause is shown at any stage of hearing of an appeal, grant time to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing:
Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal.
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- The Appellate Authority may, at the time of hearing of an appeal, allow an appellant to add any ground of appeal not specified in the grounds of appeal, if it is satisfied that the omission of that ground from the grounds of appeal was not wilful or unreasonable.
- The Appellate Authority shall, after making such further inquiry as may be necessary, pass such order, as it thinks just and proper, confirming, modifying or annulling the decision or order appealed against but shall not refer the case back to the adjudicating authority that passed the said decision or order:
Provided that an order enhancing any fee or penalty or fine in lieu of confiscation or confiscating goods of greater value or reducing the amount of refund or input tax credit shall not be passed unless the appellant has been given a reasonable opportunity of showing cause against the proposed order:
Provided further that where the Appellate Authority is of the opinion that any tax has not been paid or short-paid or erroneously refunded, or where input tax credit has been wrongly availed or utilised, no order requiring the appellant to pay such tax or input tax credit shall be passed unless the appellant is given notice to show cause against the proposed order and the order is passed within the time limit specified under Section 73 or 74 [or section 74A].
a. The order of the Appellate Authority disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reasons for such decision.
b. The Appellate Authority shall, where it is possible to do so, hear and decide every appeal within a period of one year from the date on which it is filed:
Provided that where the issuance of order is stayed by an order of a court or Tribunal, the period of such stay shall be excluded in computing the period of one year.
a. On disposal of the appeal, the Appellate Authority shall communicate the order passed by it to the appellant, respondent and to the adjudicating authority.
b. A copy of the order passed by the Appellate Authority shall also be sent to the jurisdictional Commissioner or the authority designated by him in this behalf and the jurisdictional Commissioner of State tax or Commissioner of Union Territory Tax or an authority designated by him in this behalf.
c. Every order passed under this section shall, subject to the provisions of Section 108, or section 113 or section 117 or section 118 final and binding on the parties.
7. From perusal of Section 107 of the GST Act, it is quite vivid that various appellate authorities against the adjudicating authority is provided to the petitioners under the Act, as such, the writ petition against the show cause notice, without submitting reply to the show cause notice or adjudication by the authority and thereafter without taking recourse of appellate forum available to them under the GST Act, the same are not maintainable and liable to be dismissed.
8. The Hon’ble Supreme Court has examined the issue regarding maintainable of the writ petition without exhausting the statuary appellate remedy under the GST Act, in case of The Assistant Commissioner of State Tax and Others vs. M/s Commercial Steel Limited reported in (2022) 16 SCC 447 has held in paragraphs 11 to 13 as under:
“11. The respondent had a statutory remedy under section 107. Instead of availing of the remedy, the respondent instituted a petition under Article 226. The existence of an alternate remedy is not an absolute bar to the maintainability of a writ petition under Article 226 of the Constitution. But a writ petition can be entertained in exceptional circumstances where there is:
i. a breach of fundamental rights;
ii. a violation of the principles of natural justice;
iii. an excess of jurisdiction; or
iv. a challenge to the vires of the statute or delegated legislation.
12 In the present case, none of the above exceptions was established. There was, in fact, no violation of the principles of natural justice since a notice was served on the person in charge of the conveyance. In this backdrop, it was not appropriate for the High Court to entertain a writ petition. The assessment of facts would have to be carried out by the appellate authority. As a matter of fact, the High Court has while doing this exercise proceeded on the basis of surmises. However, since we are inclined to relegate the respondent to the pursuit of the alternate statutory remedy under Section 107, this Court makes no observation on the merits of the case of the respondent.
13 For the above reasons, we allow the appeal and set aside the impugned order of the High Court. The writ petition filed by the respondent shall stand dismissed. However, this shall not preclude the respondent from taking recourse to appropriate remedies which are available in terms of Section 107 of the CGST Act to pursue the grievance in regard to the action which has been adopted by the state in the present case.”
9. Considering the provisions of law, the writ petitions against the show cause notice normally not maintainable unless jurisdictional error or competency of the authority to issue is raised and also considering the availability of statutory remedy of appeal as provided under the GST Act, the writ petitions are not maintainable and the same are dismissed.
10. However, it is directed that before assessing the tax liability of the petitioner, the respondent will comply with the provisions of the GST Act in its letter and spirit granting opportunity of hearing to the petitioners will be extended to them. It is also directed that the petitioners shall also cooperate in the proceeding and shall not try to delay the proceeding pending before the authority. It is also directed that the petitioners shall not take unnecessary adjournment and will cooperate with the authorities for early disposal of the matter.
11. Consequently, the writ petitions are dismissed for the reason mentioned above.
