# M/s Pitambra Books Pvt. Ltd v. U.O.I. & Ors

- **Citation:** (2024) 10 ILRA 707
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-10-16
- **Case number:** Writ Tax No. 1532 of 2024
- **Bench:** Shekhar B. Saraf, Vipin Chandra Dixit
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-pitambra-books-pvt-ltd-v-u-o-i-ors-51089
- **Pages:** 4

## Headnote

Civil Law-Constitution of India, 1950Article 226 - Uttar Pradesh Goods &
Service
Tax,
Act-2017-Section
74-
Petitioner is aggrieved by show cause notice in
relation to GST tax payable under Section 74
"on printing services"-It is patently clear that
there is no allegation with regard to wrongful
availment of credit or short payment of tax by
reason of fraud or any willful misSt.ment or
suppression of facts to evade tax by the
petitioner. The show cause notice is absolutely
silent
on
the
same.
Furthermore,
the
respondent authorities have not taken note of
the finality of the judgment passed by three
Advance Ruling Authorities dealing with the
exact same issue. Impugned show cause notice
is stayed till the disposal of this writ petition.
(Para 8) (E-15)

List of Cases cited:

## Text

10 All. M/s Pitambra Books Pvt. Ltd. Vs. U.O.I. & Ors.
707
proper and shall submit its report to
the Collector expeditiously within
two months from the date of its
constitution. The Collector after
obtaining
report
from
the
Committee determining the market
value of the property shall supply a
copy of the same to the petitioner,
and shall give opportunity of
hearing to the petitioner, and
thereafter,
shall
proceed
to
determine the stamp duty payable
on the instrument in accordance
with law under Section 47-A of the
Stamp Act, 1899 expeditiously,
preferably within a period of six
months from the date he received
the report of Committee.

108. Thus, for the reasons
given above, the writ petition is
disposed
off
subject
to
the
observations made above. There
shall be no order as to costs.
----------
(2024) 10 ILRA 707
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.10.2024

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.
THE HON'BLE VIPIN CHANDRA DIXIT, J.

Writ Tax No. 1532 of 2024

M/s Pitambra Books Pvt. Ltd. ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Tarun Gulati (Sr. Advocate), Sri Nishant
Mishra, Sri Kishore Kunal, Ms. Ankita Prakash,
Ms. Vedika Nath

Counsel for the Respondents:
Sri Gopal Verma, Sri Dhananjai Awasthi, Sri Gopi
Krishna Sood

Civil Law-Constitution of India, 1950Article 226 - Uttar Pradesh Goods &
Service
Tax,
Act-2017-Section
74-
Petitioner is aggrieved by show cause notice in
relation to GST tax payable under Section 74
"on printing services"-It is patently clear that
there is no allegation with regard to wrongful
availment of credit or short payment of tax by
reason of fraud or any willful misSt.ment or
suppression of facts to evade tax by the
petitioner. The show cause notice is absolutely
silent
on
the
same.
Furthermore,
the
respondent authorities have not taken note of
the finality of the judgment passed by three
Advance Ruling Authorities dealing with the
exact same issue. Impugned show cause notice
is stayed till the disposal of this writ petition.
(Para 8) (E-15)

List of Cases cited:

1.
HCL
Infotech
Ltd.
Vs
Commissioner,
Commercial Tax reported in (2024) 23 Centax
71 (All.)

2. U.O.I. & anr.v. Gauhati Carban Ltd., 2012
(278) ELT 26 (SC)

3. Whirlpool Corporation Vs Registrar of Trade
Marks, Mumbai & ors.(1998) 8 SCC 1

(Delivered by Hon'ble Shekhar B. Saraf, J.
& Hon'ble Vipin Chandra Dixit, J.)

1. Heard Mr. Tarun Gulati, learned
Senior Advocate assisted by Mr. Nishant
Mishra, Mr. Kishore Kunal and Ms. Ankita
Prakash, learned counsel appearing on
behalf of the petitioner, Mr. Gopal Verma
and
Mr.
Dhananjai Awasthi,
learned
counsel appearing on behalf of Union of
India and Mr. Gopi Krishna Sood, learned
Standing Counsel appearing on behalf of
the State.

2. This is a writ petition under
Article 226 of the Constitution of India
708 INDIAN LAW REPORTS ALLAHABAD SERIES
wherein the writ petitioner is aggrieved by
the show cause notice dated August 5, 2024
passed by the Additional Commissioner,
CGST & CE, Kanpur in relation to GST tax
payable under Section 74 "on printing
services". It is to be noted that the
petitioner is an entity that obtains tenders
issued by the Government, pays royalty to
the National Council of Educational
Research and Training, and in certain cases,
to the Governor. Upon payment of such
royalty, the petitioner prints educational
books
and
supplies
the
same
to
Government schools and also sell the same
to retailers. It is to be noted that on the
royalty paid by the petitioner GST is
applicable @ 12% and the same has been
paid by the petitioner for the past 8 years.
Till date, no action has been taken against
the petitioner in relation to such payments.

3. It appears that the Principal Chief
Commissioner, CGST and Central Excise,
Lucknow Zone vide letter dated April 16,
2024 raised an issue with regard to printing of
text books that was supplied to the Education
Department of U.P. and stated that the supply
of these books were being granted exemption
on the ground that they were educational
books. The Principal Chief Commissioner was
of the view that the publishers of the text
books do not have the right to use the contents,
hence the activity is not that of supply of
goods but would actually fall under the
category of supply of service attracting GST
@ 12%. Upon such re-categorization being
done by the Principal Chief Commissioner,
direction was given by the Principal Chief
Commissioner to take action against all such
book sellers, the petitioner being one of them.
The impugned show cause notice is in
pursuance to the above letter.

4. Upon perusal of the show cause
notice, one factor immediately strikes in
our mind that there is no specific allegation
with regard to wrongful availment or short
payment of tax "by reason of fraud, or any
wilful misstatement or suppression of facts
to evade tax".

5. As held in several judgments of
the Supreme Court and also by this Court
in HCL Infotech Ltd. Vs. Commissioner,
Commercial Tax reported in (2024) 23
Centax 71 (All.). We may refer to paras 21
and 22 of the above judgment to understand
the principle difference between Section 73
and Section 74 of the UPGST Act, 2017.
The same is delineated below:-

"21. We take note of the
fact that Section 73 of the CGST
Act gives power to the adjudicating
authority to initiate proceedings for
recovery of wrongly availed or
utilized Input Tax Credit along with
interest and penalty for any reason
other than the reason of fraud or
any
wilful
mis-statement
or
suppression of facts to evade tax. It
is to be taken note of that Section
73 comes into play in all other
circumstances except the cases
where Input Tax Credit has been
wrongly availed or utilized due to
fraud or any wilful mis-statement
or suppression of facts to evade tax.
Thus from bare reading of Section
73 of the CGST Act, it becomes
crystal clear that if the proceedings
under Section 73 of the CSGT Act
have been finalized, they cannot be
reopened except the case where the
Input Tax Credit has wrongly been
availed or utilized due to fraud or
any
wilful
mis-statement
or
suppression of facts to evade tax.
22.
We
find
that
proceedings initiated against the
10 All. M/s Pitambra Books Pvt. Ltd. Vs. U.O.I. & Ors.
709
petitioner for availing or utilizing
the excessive ITC have already
been finalized by the Respondent
No. 2 and the proceedings were
dropped
vide
order
dated
30.12.2023
therefore,
the
said
proceedings
could
have
been
reopened under Section 74 of the
CGST Act only if the adjudicating
authority was prima facie satisfied
that the petitioner has availed or
utilized Input Tax Credit due to any
fraud or any wilful mis-statement
or suppression of facts to evade tax.
The field of operation of Section 73
and 74 of the CGST Act is
altogether different i.e. Section 73
operates in all other cases of
wrongly availed or utilized Input
Tax Credit for any reason other
than fraud or wilful mis-statement
or suppression of facts and Section
74 comes into play when the
excessive Input Tax Credit has been
availed due to some fraud or wilful
mis-statement or suppression of
facts. Thus it is patently manifest
that for deriving the jurisdiction to
initiate proceedings under Section
74
of
the
CGST
Act,
the
adjudicating
authority
must
expressly mention in the Show
Cause Notice that he is prima-facie
satisfied
that
the
person
has
wrongly availed or utilized Input
Tax Credit due to some fraud or a
wilful mis-statement or suppression
of facts to evade tax and that must
be specifically spelled out in the
Show Cause Notice. Once the
aforesaid basic ingredient of the
Show Cause Notice under Section
74 of the CGST Act is missing, the
proceedings
becomes
without
jurisdiction as the adjudicating
authority derives jurisdiction to
proceed under Section 74 of the
CGST Act only when the basic
ingredients
to
proceed
under
Section 74 are present."

6. It is to be further noted that
advance ruling authorities in the State of
Karnataka, West Bengal and Chhattisgarh
have also held that the activity of printing
of books by publishers wherein the content
is provided by NCERT or any similar
educational board would amount to supply
of goods and the fact that royalty is paid by
such publishers would amount to the
publishers playing the role of copy right
holder as well as printer. We have been
informed that none of the advance ruling
authority orders have been challenged by
the Government, and accordingly, there
appears to be a finality to the said advance
ruling authority judgments.

7. The only other ground of
challenge from the side of the respondents
is that this writ petition is not maintainable
as the petitioner is challenging the show
cause notice. Counsel appearing on behalf
of the respondents submitted that the
petitioner should reply to the show cause
notice and proceed with the alternative
remedy available with the petitioner. Per
contra,
Sri
Gulati,
Senior
Advocate
appearing on behalf of the petitioner
submitted
that
the
writ
petition
is
maintainable even at the show cause notice
stage if the action taken by the respondent
authorities
is
arbitrary
and
without
jurisdiction. Sri Gulati submitted that in the
present case, the re-categorisation by the
Principal Chief Commissioner has led to
issue of the show cause notice and not
because of any reason of fraud, wilful
misstatement or suppression of facts by the
petitioner.
710 INDIAN LAW REPORTS ALLAHABAD SERIES
8. It is to be noted that the
Supreme Court in a catena of judgements
has stated that interference at the show
cause
notice
stage
and/or
when
an
alternative remedy is available to the
petitioner, specially in cases of fiscal
statutes that are self contained in nature is
to be avoided by the High Courts. The
Supreme Court in the case of Union of
India and another v. Gauhati Carban
Limited, 2012 (278) ELT 26 (SC) held
that the power under Article 226 of the
Constitution of India is an extraordinary power
and should be exercised by the High Court
only in those cases where the statutory
authority has not acted in accordance with the
provisions of the enactment in question, or in
defiance of the fundamental principles of
judicial procedure, or has resorted to invoke
the provisions which are repealed, or where an
order has been passed in total violation of the
principles of natural justice causing prejudice
to the petitioner. Landmark judgement of the
Whirlpool Corporation v. Registrar of
Trade Marks, Mumbai and others (1998) 8
SCC 1 stated that non maintainability of a writ
petition because of alternative remedy is a self
imposed restriction by the High Court wherein
the Supreme Court would normally not
exercise its jurisdiction when there is an
efficacious and alternative remedy. However,
certain exceptions were laid down in the said
judgment, one of the same being patent
illegality and the authority acting without
jurisdiction of law. In the present case, we find
that the raison d'être of the present show cause
notice is the letter dated April 16, 2024 issued
by the Principal Chief Commissioner who
appears to have had a change of opinion with
regard to taxability of text books that have
been printed and supplied by the printers such
as the petitioner. It is patently clear that there is
no allegation with regard to wrongful
availment of credit or short payment of tax by
reason of fraud or any wilful misstatement or
suppression of facts to evade tax by the
petitioner. The show cause notice is absolutely
silent
on
the
same.
Furthermore,
the
respondent authorities have not taken note of
the finality of the judgement passed by three
Advance Ruling Authorities dealing with the
exact same issue. In fact, the fact that no
challenge to the said judgement has been made
by the Government only goes to buttress the
argument placed by the petitioner.

9. At this stage, we are of the view
that the petitioner has established a prima facie
case in its favour and the balance of
convenience and inconvenience lies in favour
of the petitioner for obtaining an order of
injunction.

10. Let counter affidavit be filed
within a period of four weeks; Rejoinder
affidavit, if any, within two weeks thereafter.

11. List this matter on December 17,
2024.

12. The impugned show cause notice
dated August 5, 2024 is stayed till the disposal
of this writ petition.
----------
(2024) 10 ILRA 710
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.10.2024

BEFORE

THE HON'BLE ARVIND SINGH SANGWAN, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Capital Cases No. 6 of 2021
With
Capital Case No. 8 of 2021 and 10 of 2021

Zulfikar Abbasi ...Appellant
Versus
State of U.P. & Anr. ...Respondent