This Writ Petition, under Article 226 of the Constitution of India, came to be filed on behalf of the petitioner against the respondent Nos.1 and 2 seeking the following relief:

“…..to issue an appropriate Writ, Order or Direction, more particularly in the nature of MANDAMUS holding that the impugned Assessment cum Penalty cum Interest Order vide A.A.O.No.ZH370622OD78822, dated 01-06- 2022, passed by the First Respondent under the CGST and A.P. GST Acts, 2017, for the Tax Periods 2019-20, 2020-21 and 2021-22, without furnishing copies of the material relied on by her for passing the same, is violative of the principles of natural justice, arbitrary, contrary to law and facts, based on presumptions and assumptions, not sustainable even on merits and is illegal and consequently set aside the same ”.

2. The case of the petitioner, in nutshell, is that the petitioner, a registered person under the Goods and Services Tax Act, 2017 (for short, ‘the GST Act’) on the rolls of the 1st respondent, is engaged in the business of trading in Iron Tubes and Iron Sheets. The petitioner purchases the said goods from both within and outside the State of Andhra Pradesh and also sells the same both within and outside the State of A.P. He is regularly filing returns and paying taxes thereon within the time. The 1st respondent, who is the jurisdictional assessing authority of the petitioner, on an authorization from the Joint Commissioner (ST), Kurnool, conducted inspection of the business premises of the petitioner on 06.08.2021, seized 36 slips and on the same day, issued notice asking the petitioner to produce books of accounts for the tax period from January, 2018 to July, 2021. On further authorization from the Joint Commissioner (ST), Kurnool Division, 1st respondent issued ‘Notice of Intimation of Tax Ascertained’ in Form GST DRC-01A, dated 30.11.2021, followed by the show-cause notice in Form GST DRC-01, dated 15.02.2022, stating that on verification of the 36 account slips seized from the business premises of the petitioner, during inspection conducted on 06.08.2021, revealed that the petitioner did not account for 475.165 Tons of Iron Tubes/Sheets purchased from outside the state of A.P. in its books of accounts and also not reported turnovers to the Department in GSTR-3B returns filed by it, thus evaded tax on this suppressed purchases. In addition to the values allegedly recorded in the said slips which are to a tune of Rs.1,68,59,508/-, the 1st respondent added estimated value ‘not recorded in the slips’ at the rate of Rs.40,000/- per ton of Rs.47,46,800/- and arrived at the total suppressed purchase value of Rs.2,16,06,308/-. To the said alleged total suppressed purchase value, the 1st respondent added G.P. at the rate of 10% and arrived at alleged total suppressed sale turnover of Rs.2,37,66,939/- and proposed to impose tax thereon at the rate of 9% under CGST + 9% under SGST. In addition, she proposed to impose tax on the alleged deficit in stock of Rs.25,22,514/- found at the time of inspection as compared to the book stock. The 1st respondent also proposed to impose applicable penalty and interest and also issued personal hearing notices dated 21.03.2022, 05.05.2022 and 11.05.2022. It is said that to none of the said notices, the 1st respondent has enclosed copies of the material i.e., alleged unaccounted slips, inspection report etc., relied upon for proposing to make the assessment. The petitioner submitted its objections in reply to the show- cause notice issued vide its letter dated 01.03.2022.

3. The 1st respondent issued the impugned order vide AAO No.ZH370622OD78822, dated 01.06.2022, rejecting the objections filed by the petitioner and confirming the proposals contained in the show-cause notice. The 1st respondent imposed tax of Rs.23,88,754/- under CGST + Rs.23,88,754/- under SGST + penalty of Rs.23,88,754/- under CGST + penalty of Rs.23,88,754/- under SGST + interest of Rs.5,04,251/- under CGST + Interest of Rs.5,04,251/- under SGST. Total demand raised is Rs.1,05,63,518/-. It is mentioned in the impugned order that if the petitioner pays tax with interest within 30 days from the date of communication of the said order, penalty will be reduced by 50% as per Section 74(11) of the CGST and SGST Acts, 2017.

4. After receiving the impugned order, the petitioner consulted a Tax Consultant and on his advice submitted an application, dated 12.08.2022, to the 1st respondent requesting to furnish certified copies of the materials/documents seized at the time of inspection, and relied upon by the 1st respondent to issue the show-cause notice; statement, if any recorded by the inspecting authority at the time of inspection; panchanama, if any drafted at the time of inspection and copy of the authorization in Form GST INS-1, issued by the Joint Commissioner (ST), Kurnool, authorizing him to inspect the business premises of the petitioner. The 1st respondent accordingly furnished certified copies of the documents sought for after passing of the impugned order. Furnishing the material relied on for passing the impugned order, after the said order has been passed will not rectify the defect of violation of the principles of natural justice as the petitioner did not have the opportunity to verify the same before filing its objections in reply to the show-cause notice. On verification of the material, the alleged unaccounted slips allegedly seized from the business premises of the petitioner, it is found that some of the slips do not relate to the petitioner at all and some of the slips are only ‘Estimation/Quotation’ and some are Kacha Slips and some slips just contain some figures and the transactions recorded in some of them were very much recorded in the books of accounts and therefore have been duly accounted for, reported and paid tax thereon. If the said material was available at the time of filing objections, the petitioner could have mentioned the same in its objections/reply to the show-cause notice. Panchanama, copy of which was furnished by the 1st respondent, shows that it is a printed form by filling up blanks and it is not signed by the scribe and instead of taking the signatures of independent witnesses, signatures of the accountant and brother of the Proprietor of the petitioner were taken, which is contrary to the provisions of the Act.

5. Hence, passing of the order under the CGST and SGST Acts, 2017 is illegal and imposing penalty and interest is also illegal. The petitioner is challenging the impugned order on the ground of violation of principles of natural justice and arbitrariness apart from merits; as such the present Writ Petition is maintainable. The petitioner has not collected the disputed tax and the 1st respondent raised huge artificial demand of tax, penalty and interest. Filing of Statutory Appeal which comes with the onerous condition of statutory deposit for maintaining the Appeal is not possible, as such maintaining of Appeal is not an effective alternative remedy. Hence, the petitioner by way of this Writ Petition invoked the jurisdiction of this Court under Article 226 of the Constitution of India.

6. Now the point that arises for consideration is whether the impugned order under challenge is liable to be set-aside on the ground that it was issued without following the principles of natural justice?

7. Sri G. Narendra Chetty, learned counsel appearing on behalf of the petitioner, while adverting to the grounds raised in Writ Petition would contend that the alleged material said to have been seized from the business premises of the petitioner was never supplied to him along with the show-cause notice and had it been supplied to him along with the show-cause notice, the petitioner would have filed a suitable reply. The very order under challenge imposing arbitrary amounts is in violation of the principles of natural justice. In addition, it was the bounden duty of the 1st respondent to furnish every material which was relied upon before making an order of adjudication, but contrary to the well established principles of law, the 1st respondent issued the show-cause notice without enclosing the material and though the petitioner filed detailed objections, these were not considered properly as such the impugned order is liable to be set-aside on the sole ground that it is in utter violation of the principles of natural justice. In support of his contentions, the learned counsel relied upon a decision of the Hon’ble Apex Court in T. Takano v. Securities and Exchange Board of India and another 2022 LiveLaw (SC) 180 and other decisions of this Court in Sri Uma Maheswara Rice and Flour Mill v. Commercial Tax Officer (2012) 54 APSTJ 51 (AP), ITC Limited, Sarapaka, Khammam District v. The Assistant Commissioner (CT) LTU, Warangal (2009) 49 APSTJ 234 (AP), Sri Nallana Sambasiva Rao v. State of A.P. (2015) 61 APSTJ 255 (AP) and M/s. T. Ramanjaneyulu General Stores v. The Deputy Commercial Tax Officer-I and another W.P. No.31274/2015, dated 26.10.2015.

8. On the other hand, Sri Y. N. Vivekananda, learned Government Pleader for Commercial Tax, appearing for the respondents, would contend that the aforesaid citations relied upon by learned counsel for the petitioner altogether stand on a different footing. According to him, whatever the documents that were seized from the business premises of the petitioner were in the custody of the petitioner alone and the petitioner never denied that he had no knowledge whatsoever about the contents of the slips and in fact in the objections filed, the petitioner never sought for furnishing of the said material. Though multiple opportunities were given to the petitioner to attend for personal hearing but he failed to avail the same and the contention of the petitioner that there is violation of principles of natural justice cannot stand to any reason. The contention of the petitioner that there was violation of principles of natural justice due to non furnishing of the material to the petitioner, which was alleged to be seized from the business premises of the petitioner may not stand to any reason. If really, the plea of the petitioner was bona- fide enough to look into the said material, he would have made such a request in the objections filed. Now he maintained the Writ Petition on different grounds without there being any request for furnishing of such material for the purpose of submission of his objections before the revisional authority, as such the Writ Petition must fail. He would further contend that even according to the petitioner there is an alternative remedy of Appeal and merely because the amount to be paid for maintaining an Appeal is high, the petitioner cannot avoid the statutory remedy of appeal. Further, the petitioner raised disputed questions of facts even in the objections to the notice and arrived at different figures etc., and that be the case the same cannot be gone into in a Petition filed under Article 226 of the Constitution of India. Hence, pleads that the Writ Petition itself is not maintainable and it is liable to be dismissed with costs.

9. The solitary ground on which the petitioner maintained the Writ Petition is that there was violation of principles of natural justice, namely that to the show-cause notice issued by the 1st respondent, the material alleged to have been seized from the business premises of the petitioner was not enclosed, so as to enable him to file a suitable reply. On 15.02.2022 a show- cause notice was issued and thereafter personal hearing notices were issued on 21.03.2022, 05.05.2022 and 11.05.2022. There is no dispute to the fact that the petitioner submitted reply on 01.03.2022 which was received in the office of the 1st respondent on 16.04.2022. As is evident from the copy of the objections, dated 01.03.2022, submitted by the petitioner, the petitioner raised disputed questions of facts.

10. There is no whisper or there is no request in the reply to the show-cause, dated 01.03.2022, that the petitioner is not aware of the contents of the slips that were seized from the business premises of the petitioner. It is an admitted fact that the petitioner produced other books of accounts on notice from the assessing authority as such he has knowledge about the contents of the slips. A perusal of the objections, dated 01.03.2022, would show that the petitioner has knowledge of the contents of the slips also. He never made any request to furnish copies of the material alleged to have been seized. Apart from that, it is not the case of the petitioner that no raid was conducted by the 1st respondent, on authorization from the Joint Commissioner (ST), Kurnool, to the business premises of the petitioner. Copy of the panchanama relied upon by the petitioner shows that there was signature in the column of the petitioner as “for: Umar Iron Mart” and in token of signing the panchanama. The impugned order, dated 01.06.2022, further reveals that the objections raised by the petitioner were answered by the 1st respondent. The petitioner cannot now agitate about the correctness of the figures, under Article 226 of the Constitution of India.

11. To buttress the contention, learned counsel for the petitioner relied upon the five (5) decisions. Now, it is a matter of consideration to decide as to whether the decisions relied on by the petitioner would support the contentions of the petitioner that there is violation of the principles of natural justice due to non-furnishing of the material that was seized from the business premises of the petitioner.

12. Learned counsel for the petitioner relied on a decision of the Hon’ble Apex Court in T. Takano (1st supra). We have gone through the above decision. Though it dealt with the principles of natural justice but the facts on which the above aspect was considered being that investigation report under Regulation 9 of the SEBI (Prohibition of Fraudulent and Unfair Trade Practices) Regulations (for short, ‘the PFUTP Regulations’), 2003 was not furnished to the petitioner, which was the basis for issuance of show-cause notice. The factual aspects in the above said case were that the appellant was employed as the Managing Director and Chief Executive Officer in Ricoh India limited, a public listed company. For a specific period, the Auditors raised suspicion regarding the veracity of the financial statements of the company. The Audit Committee of the Company appointed Price Water House Coopers Private Limited (PWC) to carry out a forensic audit and it submitted a preliminary audit report on 20.04.2016. The company addressed a communication to the 1st respondent therein stating that the financial statements for the two quarters under audit did not reflect the true affairs of the company and requested the 1st respondent to carry out an independent investigation on possible violations of the provisions of the PFUTP Regulations. Final report submitted by PWC was forwarded by the company to the 1st respondent, who initiated an investigation. The investigation report reveals the financial misstatements from the relative period and the show-cause notice was issued without enclosing the investigation report. In such circumstances, the Hon’ble Supreme Court held that the Board shall be duty bound to provide copies of such parts of the report which contain the specific allegations levelled against the appellant in the notice to show cause. However, this does not entitle the appellant to receive sensitive information regarding third parties and unrelated transactions that may form part of the investigation report.

13. Coming to the present case on hand, it is not a case where the material that was alien to the petitioner was sought to be used against the petitioner herein. As stated earlier, the material that was seized from the business premises of the petitioner was made the basis to issue the show-cause notice. Even according to the reply submitted by him, he never raised his little finger before the 1st respondent refuting that he has no knowledge whatsoever about the contents of the 36 slips etc., Hence, in our considered view, the decision of the Hon’ble Apex Court in T. Takano (1st supra), does not help the petitioner.

14. In Sri Uma Maheswara Rice and Flour Mill (2nd supra), the grievance of the petitioners in those batch of Writ Petitions was that neither the assessing authority nor the appellate authority nor the revising authority under the Andhra Pradesh General Sales Tax Act, 2017 supplied a copy of the report furnished by the Regional Vigilance and Enforcement Officer, Rajahmundry, on the basis of which a finding has been given against the petitioners. It was a case where the Vigilance and Enforcement Authorities of Rajahmundry collected some incriminating material, furnished the same to the assessing authority, which was made the basis for show-cause notice. It was also a case where some information from the audit report was collected by the Vigilance and Enforcement Authorities and was made the basis for issuance of show-cause notice.

15. Hence, the said decision also stands on a different footing and it will not be of any help to support the plea of violation of principles of natural justice.

16. Coming to the next decision of this Court in ITC Limited, Sarapaka, Khammam District (3rd supra), it was a case where the petitioner made an application for furnishing the report of the Enforcement Official but the respondent declined to furnish on the ground that the report of the Enforcement Official is communicated for internal circulation. This Court held that when a report of the Enforcement Official is relied upon in a show cause notice, the request for a copy when asked by the assessee has to be furnished.

17. In the case on hand, as stated earlier, the basis for issuance of show-cause notice to the petitioner was the material seized from the business premises of the petitioner and the petitioner could submit his objections to the show-cause notice without there being any further request to supply the material, which was seized from the business premises of the petitioner. So, the decision of this Court in ITC Limited, Sarapaka, Khammam District (3rd supra) will not be of any help to the petitioner, to prove that there was violation of principles of natural justice.

18. Turning to the another decision of this Court in Sri Nallana Sambasiva Rao (4th supra), where the assessment was done solely on the basis of the material and report submitted by the Regional Vigilance and Enforcement Officers, it was held that it is obligatory on the part of the authorities to supply such material along with the notice of assessment and invite objections from the dealers before passing the assessment order. The factual aspects were that the petitioner therein was successful bidder for sand quarry in the sand reach of Eturu village of Chandarlapadu Mandal in Krishna District. He was a dealer on the rolls of the Commercial Tax Officer, Nandigama Circle. Basing on the report furnished by the Regional Vigilance and Enforcement Officer, Vijayawada, impugned order was passed in Form-VAT 305 regarding the tax payable by the petitioner at Rs.1,17,45,950/- alleging that the petitioner did not report the actual turnover. It is not a case where the material was seized from the petitioner. So the said decision would be of no help to the petitioner to contend that there was violation of the principles of natural justice.

19. Coming to another decision of this Court in M/s. T. Ramanjaneyulu General Stores (5th supra) in Writ Petition No.31274 of 2005, the facts show that the impugned assessment-cum-penalty proceedings were issued by the 1st respondent therein on the grounds which were not mentioned in the show-cause notice and also without furnishing the copies of the material relied upon for passing the impugned order. The above said Writ Petition was disposed of in the light of the orders in Writ Petition Nos.20787 and 20796 of 2015, dated 20.07.2015, by a Division Bench of the common High Court at Hyderabad. It was a case where the petitioners therein specifically requested the authorities to furnish the names of the sellers from whom the petitioners were alleged to have purchased the material and the authorities failed to furnish the names of the sellers. That was the factual background under which common order was passed by the High Court at Hyderabad. Turning to the present case on hand, the petitioner never requested in his objections to furnish further information from the 1st respondent.

20. There is no denial of the fact that the petitioner is disputing correctness of the amounts that was arrived at by the 1st respondent. It is well settled under Article 226 of the Constitution of India, this Court cannot go into factual aspects. Further, there is no dispute that the petitioner has a right of Appeal under Section 107 of the CGST Act, 2017.

21. The Hon’ble Apex Court in Chand Ratan v. Durga Prasad and others AIR 2003 SC 2736, while dealing with Article 226 of the Constitution of India held that when a right or liability is created by a statue, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before seeking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is no doubt a rule of policy, convenience and discretion and the Court may in exceptional cases issue a discretionary writ of certiorari. Where there is complete lack of jurisdiction for the officer or authority or Tribunal to take the action or there has been a contravention of fundamental rights or there has been a violation of rules of natural justice or where the Tribunal acted under a provision of law, which is ultra vires, then notwithstanding the existence of an alternative remedy, the High Court can exercise its jurisdiction to grant relief.

22. In the light of the above decision and as the petitioner has an alternative remedy of appeal under Section 107 of the GST Act and as the petitioner failed to succeed in establishing that there has been violation of the principles of natural justice, we hold that the Writ Petition is liable to be dismissed. It is open to the petitioner to avail the remedy available under law, in which event the period of pendency of Writ Petition before this Court be given set-off while calculating the period of limitation.

23. Accordingly, the Writ Petition is dismissed at the admission stage. No order as to costs.

As a sequel, miscellaneous applications pending, if any, shall stand closed.