Page 90 - GSTL_6th August 2020_Vol 39_Part 1

16 GST LAW TIMES [ Vol. 39
4. The show cause notice is yet to be adjudicated.
5. In such circumstances referred to above, the writ applicant has come
up before this Court seeking to get the impugned show cause notice quashed and
set aside.
6. It also needs to be stated at this stage that there is also a challenge to
the constitutional validity of Rule 142(1)(a) of the CGST Rules on the ground that
the same travels beyond the provisions of the Act and is a result of excessive del-
egation of powers.
• Submissions on behalf of the writ applicant :
7. Mr. Avinash Poddar, the Learned Counsel appearing for the writ
applicant vehemently submitted that the impugned show cause is invalid as Sec-
tion 122 of the Act, 2017 does not contemplate issue of any show cause notice.
According to the Learned Counsel, if it is the case of the department that the writ
applicant is guilty of fraud or suppression, then a show cause notice under Sec-
tion 74 of the Act, 2017 is contemplated for the purpose of determination of the
tax liability.
8. Mr. Poddar would submit that the respondent No. 1 has committed a
serious error in adding both the outward supply and the input tax credit for the
purpose of imposition of the amount of penalty. According to him, it is contrary
to the scheme of the CGST Act, more particularly, Section 74 of the Act, 2017.
9. Mr. Poddar would submit that Rule 142(1)(a) of the CGST Rules con-
templates for issuance of summary notice electronically along with the notice
issued under Section 52 or Section 73 or Section 74 or Section 76 or Section 122 or
Section 123 or Section 124 or Section 125 or Section 127 or Section 129 or Section
130 of the GST Act, 2017. According to the Learned Counsel, as Section 122 of the
Act, 2017 does not contemplate issue of any show cause notice, the Rule 142(1)(a)
travels beyond the provisions of the Act. In such circumstances, according to the
Learned Counsel, Rule 142(1)(a) deserves to be declared as ultra vires being in
excessive delegation of the powers.
10. In such circumstances referred to above, Mr. Poddar, the Learned
Counsel prays that there being merit in his writ application, the same may be
allowed and the reliefs prayed for in the writ application may be granted.
• Submissions on behalf of the State :
11. Ms. Manisha Lavkumar Shah, the Learned Government Pleader as-
sisted by Mr. Dharmesh Devnani, the Learned A.G.P. appearing for the State has
vehemently opposed this writ application. According to Ms. Shah, the writ ap-
plication seeking to question the legality and validity of a show cause notice is
not maintainable because it cannot be said in the present case that the show
cause notice issued by the respondent No. 1 is without jurisdiction or a nullity.
According to Ms. Shah, the show cause notice is yet to be adjudicated. It is sub-
mitted that the writ applicant must file his reply and make good his case for get-
ting impugned show cause notice discharged.
12. Ms. Shah further contended that the challenge to the constitutional
validity of Rule 142(1)(a) of the Rules is without any foundation. In this connec-
tion, Ms. Shah invited the attention of this Court to Section 164 of the Act, which
confers powers upon the Government to make rules. Ms. Shah pointed out that

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