Uttarakhand High Court
Through: Shri S.K. Posti vs Commissioner Of The Cgst on 6 July, 2022
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition No. 2589 (MS) of 2021
M/s Alfa Ignot Pvt. Ltd.
and others. ................Petitioners.
Through: Shri S.K. Posti, learned Sr. Advocate
assisted by Shri Ashutosh Posti, learned
counsel for the petitioners.
-Versus-
Commissioner of the CGST,
and others. .........Respondents.
Through: Shri Shobhit Saharia, learned
counsel for the respondents.
Date of Hearing and Order : 06.07.2022
Shri Sanjaya Kumar Mishra, J.
(Upon hearing of learned counsel for the parties, the Court has passed
the following Orders):
1. By filing this writ petition, the petitioners have prayed for
the following reliefs:
"i. Issue a suitable writ, order or direction in the nature
of certiorari, calling the record of the case and quash the
summoning order issued to the petitioners. (Annexure
No. 5 to W.P.)
ii. Issue a suitable writ, order or direction in the nature
of Mandamus commanding the respondent not arrest
the petitioners in pre inquiry proceeding in pursuance of
the summon dated 03.11.2021 issued to petitioners no. 2
and 3 (Annexure No. 5 to W.P.).
iii. Issue a suitable writ, order or direction in the nature
of mandamus to the respondent authority not to arrest
to petitioner in pursuance of notice issued under
Section 70 of the CGST Act and impose such and other
condition which this Hon'ble Court deem fit and proper
to protect the liberty of the petitioner as petitioners are
ready to cooperate with the inquiry proceedings."
2. It is apparent from the record that petitioners have
challenged Annexure No. 5 to the writ petition - a summoning
order issued by Senior Intelligence Officer, office of DGGI,
Meerut under Section 70 of the Central Goods and Services Tax
Act, 2017.
3. This Court while deciding a similar issue in the case of
Himgiri Ispat Pvt. Ltd. Vs. Commissioner of the CGST,
Commissionerate at Dehradun 2022 NTN (Vol. 78) 457 has held
that a writ petition is not maintainable against an order of show
cause or summoning order for production of documents.
However, certain directions were issued to the respondents to
comply with, as envisaged under Section 69 (1) of the Act. It is
appropriate to take note of paragraph 4 of the aforesaid
judgment:
"4.The learned counsel for the petitioner admitted that he
has challenged the summoning order which is at Annexure
6, issued by the Inquiring Officer for recording the
statement of the petitioner. He also cited certain orders
passed by the Coordinate Bench, in which, stay orders have
been granted restraining the respondents from arrest of the
petitioner. However, this Court is of the opinion that a writ
to quash a summoning order is not maintainable. Hence,
this Court is not inclined to follow the orders passed by the
learned Single Judge sitting in the Coordinate Bench,
which do not constitute a binding precedent. However,
keeping in view the apprehension of the petitioner, the
submissions made by Mr. Ashutosh Posti, learned counsel
for the petitioner and the submissions made by Mr. Shobhit
Saharia, learned counsel for the respondents, this Court
observes that the petitioner shall appear before the
Authority summoning him for recording his statement.
However, this Court further directs that before taking any
steps to arrest, the Commissioner of CGST, Dehradun shall
comply the provisions of Sub-Section (1) of Section 69 in
letter and spirit. In other words, he must come to a definite
conclusion that the petitioner has committed the offence as
enshrined thereon, on the basis of credible materials and
before authorizing any person to arrest the petitioner and
the commissioner must record the reasons and material that
he took into consideration in authorizing the officer to
arrest him. A violation of this order shall be considered
contempt of this Court."
4. In that view of the matter, I direct that petitioners shall
appear before respondent no. 3 within 15 days from today and if
so advised, they may take assistance of an Accountant but if
respondent no. 3 desires to arrest the petitioners, then he shall
comply with the provisions of Section 69 (1) of the Act.
5. With such observations, the writ petition is disposed of.
(Sanjaya Kumar Mishra, J)
SKS
