Additional Commissioner is a proper officer to issue a show-cause notice under Section 74(1) of the CGST Act: High court of Telangana

The monitory limit in the present case is above Rs.2,00,00,000/- (Rupees two crores). In such circumstances, and having regard to the above, it cannot be said with any degree of certainty that respondent No.4 is not the ‘proper officer’ competent to issue the impugned show cause notice. Such an observation was made by the Hon’ble Telangana High Court before Hon’ble Justice UJJAL BHUYAN & Hon’ble Justice DR. CHILLAKUR SUMALATHA in the matter of  M/s AMBIKA FOOD INDUSTRIES PVT. LTD vs UNION OF INDIA, REP. BY ITS SECRETARY & ors [W.P.NO.28893 OF 2021]

The facts of the case were that a Show cause notice was issued against the petitioner by respondent no. 4 under section 74(1) of the CGST Act. The said Show Cause notice was assailed by the petitioner on the basis that respondent no. 4 was not a proper officer having jurisdiction to issue the impugned show cause notice. On the other hand, it was the contention of the respondents that respondent No.4 is indeed the ‘proper officer’ in the present case, and therefore, there should be no interference with the impugned show-cause notice on the ground that the notice issuing authority is not the proper officer.

The Hon’ble High Court held that “As per this definition, ‘proper officer’ means the Commissioner or the officer of the central tax, who is assigned that function by the Commissioner in the Board.

Additionally, the Hon’ble High Court observed that “As per Circular No.3/3/2017 – GST dated 05.07.2017 of the Board, which has been issued in exercise of powers conferred by clause (91) of Section 2 of the CGST Act, read with Section 20 of the IGST Act, and subject to sub-section (2) of Section 5 of the CGST Act, the Board has assigned the officers mentioned in column No.2 of the appended table, the functions of ‘proper officer’ in relation to various sections of the CGST Act. We find that at Sr.No.3 Deputy or Assistant Commissioner of Central Tax have been designated as ‘proper officer’ for discharging functions under sub-sections (1), (2), (3), (5), (6), (7), (9) and (10) of Section 74..” Further, it was observed by the Hon’ble High Court Board’s Circular No.31/05/2018-GST dated 09.02.2018, more particularly in paragraph No.4 thereof, it is clarified that all officers up to the rank of Additional / Joint Commissioner of Central Tax are assigned as the ‘proper officer’ for issuance of show cause notices and orders under sub-sections (1), (2), (3), (5), (6), (7), (9) and (10) of Sections 73 and 74 of the CGST Act

Finally, the Hon’ble High Court dismissed the appeal on the aforesaid grounds but to meet the ends of justice granted a further three weeks time to the petitioner to file reply to the show cause notice dated 12.04.2021.

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Judgment Reviewed by: Rohan Kumar Thakur

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