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1 IN THE HIGH COURT OF DELHI AT NEW DELHI EXTRA ORDINARY ORIGINAL CIVIL WRIT JURISDICTION WRIT PETITION (CIVIL) NO. OF 2018 IN THE MATTER OF:- KTC (India) Pvt. Ltd. Versus Commissioner of Central GST Audit-II Delhi INDEX Petitioner Respondent S. No. PARTICULARS PAGE NO. 1. Notice of Motion 1 2. Urgent Application 2 3. Court Fees 3 4. Memo of Parties 4 5. Synopsis and List of Dates 6. Writ Petition under Article 226 & 227 of the Constitution of India along with Affidavit 7. Annexure No. A-1: True Copy of the letter dated issued by the Respondent. 8. Annexure No. A-2: True Copy of Judgment Writ petition No of 2013 dated Annexure No. A-3: True Copy of Judgment W.P. (C) 5192 of 2015 titled as Megacabs Pvt. Ltd. vs. Union of India 10. Application under section 151 of the code of civil procedure, 1908 for interim relief with affidavit. 11. Vakalatnama Filed by Place: New Delhi Date:05 / 12 /2018 (Anurag Ojha)(D.N. Chaturvedi) CORPORATE JUDIS advocates & solicitors Counsel for petitioner Chamber No. 346A, Lawyer s Chamber-I, Delhi High Court-Delhi (M)

2 IN THE HIGH COURT OF DELHI AT NEW DELHI EXTRA ORDINARY ORIGINAL CIVIL WRIT JURISDICTION WRIT PETITION (CIVIL) NO. OF 2018 IN THE MATTER OF:- KTC (India) Pvt. Ltd. Petitioner Versus Commissioner of Central GST Audit-II Delhi Respondent URGENT APPLICATION To, The Registrar Delhi High Court, New Delhi Sir, Kindly treat the accompanying application as urgent as per Delhi High Court rules. Kindly list this matter before the Hon ble Court urgently. Filed by Place: New Delhi Date:05 /12 /2018 (Anurag Ojha)(D.N. Chaturvedi) CORPORATE JUDIS advocates & solicitors Counsel for petitioner Chamber No. 346A, Lawyer s Chamber-I, Delhi High Court-Delhi (M)

3 IN THE HIGH COURT OF DELHI AT NEW DELHI EXTRA ORDINARY ORIGINAL CIVIL WRIT JURISDICTION WRIT PETITION (CIVIL) NO. OF 2018 IN THE MATTER OF:- KTC (India) Pvt. Ltd. Petitioner Versus Commissioner of Central GST Audit-II Delhi Respondent NOTICE OF MOTION Sir, Kindly take notice that the accompanying Writ Petition in the aforesaid matter as being filed by the Petitioner before Delhi High Court and the same is likely to be listed on A copy of the application with all the Annexures is being supplied alongwith this letter. Filed by Place: New Delhi Date:05/12 /2018 (Anurag Ojha)(D.N. Chaturvedi) CORPORATE JUDIS advocates & solicitors Counsel for petitioner Chamber No. 346A, Lawyer s Chamber-I, Delhi High Court-Delhi (M)

4 SYNOPSIS AND LIST OF DATES But if life is not logic, Income Tax is much less so, and it is clear that we cannot impose tax upon a subject by implication or because we think that the object of the Legislature was a particular object. In order to carry out the object the Legislature must use appropriate language and if the Legislature fails to use appropriate language then this would be one of the many sad instances where the Legislature, to use the famous language of a Law Lord, has misfired and however much we may regret the misfiring it would be our duty to relieve the subject from taxation if the language of the statute does not support the contention of the Income Tax department. -Chagla CJ, Elphinstone Spinning and Weaving Mills Co. Ltd. Vs. Commissioner of Income Tax [1955]28ITR811(Bom) The recourse to plenary constitutional powers under Article 226 of Constitution of India has occasioned, to assail the legality, proprietary, validity of notice dated issued by the Respondent No. 1 to the Petitioner for conducting service tax and central excise audit. The neat factual backdrop underlying the grievance thus describes: a) That Petitioner is a Travel & Tour operator and is engaged in business of providing services to various customers. The Petitioner is an Assesse under the Good and Services Tax Act, 2017 and has been paying requisite taxes as mandate under law. b) That initially vide letter dated , the Respondent has sought the records of period & for scrutiny of audit party. The said action was purportedly done under Rule 5(A) of Service Tax

5 Rules, The said notice fell for challenge before this Hon ble Court in W.P. (C) 3774/2013 titled as Travelite (India) Vs. Union of India, which has culminated into the quashment of the same, along with the notice issued on its strength. c) The identical challenge travelled to the portal of Hon ble Gujarat High Court in Sadbhav Engineering Limited v. Union of India reported in 2016 (46) S.T.R. 22 (Guj.) and met with same fate. d) The revenue, having failed, came with amendment in Rule 5 (A) of Service Tax Rues, The said amendment has again fell for challenge before this Hon ble Court in the case of Megacabs Pvt. Ltd. v. Union of India reported in 2016 (43) S.T.R. 67 (Del.) and this Hon ble Court declared that the amended provision and notification leading there to authorizing the officers of Service Tax Department seeking production of documents on demand as ultra vires to the Finance Act and was thus unconstitutional. e) With the introduction of Goods and Services Tax Act, 2017, the Finance Act 1994 and Service Tax provisions made thereon outlandished its significance as it stands repealed and therefore, Rule 5 (A) of Service Tax Rules, 1994 does not survive existence; notwithstanding the same, the present notices under challenged, are purportedly in exercise of Rule 5 (A) of Service Tax Rules,

6 1994. In that connection following are apparent absurdities and legal vulnerabilities in the notice under challenged, can be manifested: I. That with the introduction of the Goods and Service Tax Act, the Finance Act, 1994 and the Service Tax provisions made thereon, stands repealed. Section 174 of the Central Goods and Service Tax Act, 2017 ( the CGST Act for short) and contended that the Saving Clause contained in section 174 would not save Rule 5A of the Service Tax Rules, 1994, so as to enable the respondents to initiate fresh proceedings for audit under the said Rule. II. That section 173 of the CGST Act provides that save and otherwise provided in the said Act, Chapter V of the Finance Act, 1994, shall be omitted. Section 174 of the CGST Act contains Repeal and Saving Clauses. Subsection (1) thereof provides that save and otherwise provided, on and from the date of commencement of the said Act, several Acts mentioned therein would stand repealed. Subsection (2) of Section 174 is a Saving Clause and it, interalia, provides that the amendment of the Finance Act, 1994 to the extent mentioned in Subsection (1)of Section 173, shall not revive anything not in force or existing at the time of such amendment or repeal. Clause (e) of this Saving Clause reads as under; (e) affect any investigation, inquiry, verification (including scrutiny and audit),assessment proceedings, adjudication and any other legal proceedings or recovery of arrears or remedy in respect of any such duty, tax, surcharge, penalty, fine, interest, right, privilege, obligation, liability, forfeiture or punishment, as

7 aforesaid, and any such investigation, inquiry, verification (including scrutiny and audit), assessment proceedings, adjudication and other legal proceedings or recovery of arrears or remedy may be instituted, continued or enforced, and any such tax, surcharge, penalty, fine, interest, forfeiture or punishment may be levied or imposed as if these Acts had not been so amended or repealed; III. That in petitioner s respectful submission, a perusal of the said clause of Subsection (2) of Section 174 and other clauses would, prima facie, show that there was no saving of Rule 5A in such manner that fresh proceedings for audit could be initiated in exercise of powers under the said Rule. IV. That the basic postulate of the taxing statute hinges upon the fact that there must be clear powers to subject the assesse to a procedure for determination of levy. It is well settled principle of law that taxing statutes are to be construed strictly. In that connection, it is submitted that a taxing statute like criminal enactments are strictly construed and in case of ambiguity, the benefits must be given to assesse. Further the assumption of retrospectively in taxing statute is presumed absent unless specific words so connotes or the necessary implications so denotes. Tested on this touchstone, it is clear that the provision contained in in section 174(2) read with Rule 5(A) of Service Tax rules 1994 as amended and rule 22 of Central Excise Rules 2002 does not posits powers in the Respondent to conduct Audit. This position has been so held by this Hon ble Court and Other High courts, unequivocally by interpreting the very same statutory regime sought to be invoked this time. So long as those

8 judgments stands and occupies the field, no interpretation contrary to what has been ruled by the constitutional courts can be given to infer the powers to conduct audit in Respondent when it has be held that no such power exist in Respondents. Close to the heel another limb of assail to impugned notice is the fact that after enactment of GST Act and consequential repeal even the provision sought to be relied upon by the Respondent are not saved and thus the impugned notice, in effect, seeks to revive by way operation a provision, which has been repealed by the legislatures. Thus the whole exercise of conducting special audit is without authority of law and thus illegal. V. That the bare reading of provision as contained in section 72A of Finance Act 1994, reflects that unless the pre-conditions specified in the said provision are satisfied the special audit cannot be initiated. The impugned notice, in no manner, illustrates as to how the above provisions are satisfied occasioning the notice for special audit. VI. Added to these submission, is the fact that once an interpretation to a particular provisions are given by the constitutional court, the legislature by way of amendment cannot wipe out the consequence of said judicial enunciation of law unless basis founded on which the law was declared is altered in such a way that under the amended provision, the court cannot reach to said interpretation. Applying the said principle in the instant case. It is crystal clear that there is no warrant in law which is capable of obliterating the interpretation already assigned to the respective

9 provision holding them incapable of bestowing any powers in the Respondent to conduct Audit. In petitioner s submission, the offshoot of above discourse is clear that the Respondent has no power under repealed provisions to conduct the audit and thus the communication/notice founded thereon, is `an apparent illegality. LIST OF DATES AND EVENTS DATES EVENTS Rule 5A of Service Tax Rules,1994 came into force, it thus reads: Rule 5 (a): Access to registered premises. (1) An officer authorised by the [Principal Commissioner or Commissioner] in this behalf shall have access to any premises registered under these rules for the purpose of carrying out any scrutiny, verification and checks as may be necessary to safeguard the interest of revenue. (2) Every assessee, shall, on demand make available to the officer empowered under sub-rule (1) or the audit party deputed by the Commissioner or the Comptroller and Auditor General of India, or a cost accountant or chartered accountant nominated under section 72A of the Finance Act, 1994,- (i) the records maintained or prepared by him in terms of sub-rule (2) of rule 5; (ii) the cost audit reports, if any, under section 148 of the Companies Act, 2013 (18 of 2013); and (iii) the income-tax audit report, if any, under section 44AB of the Income-tax Act, 1961 (43 of 1961), for the scrutiny of the officer or the audit party, or the cost accountant or chartered accountant, within the time limit specified by the said officer or the audit party or the cost accountant or chartered accountant, as the case may be One Assesse namely, Travelite (India) was served with letter dated by the Respondent seeking records for period till for scrutiny of an audit party. Writ petition No of 2013 was instituted before this Hon ble Court to challenge the notice dated

10 seeking records for scrutiny of audit party on the ground Rule 5 (A) sub clause 2 of Service Tax Rules, 1994 is ultra vires. The said Writ Petition was allowed holding the said rule and CBEC instruction providing for such audit as unconstitutional The Notification no. 23/2014 dated led to amendment in Rule 5 (A) sub clause 2 of Service Tax Rules,1994 in exercise of power conferred under Section 94 sub clause 2 (k) of Finance Act, 1994 empowering the authorities to demand documents mentioned hereunder. In the Service Tax Rules, 1994, in rule 5A, for sub-rule (2), the following sub-rule shall be substituted, namely:- (2) Every assesse, shall, on demand make available to the officer empowered under sub-rule (1) or the audit party deputed by the Commissioner or the Comptroller and Auditor General of India, or a cost accountant or chartered accountant nominated under section 72A of the Finance Act, 1994,- (i) the records maintained or prepared by him in terms of sub-rule (2) of rule 5; (ii) the cost audit reports, if any, under section 148 of the Companies Act, 2013 (18 of 2013); and (iii) the income-tax audit report, if any, under section 44AB of the Income-tax Act, 1961 (43 of 1961), for the scrutiny of the officer or the audit party, or the cost accountant or chartered accountant, within the time limit specified by the said officer or the audit party or the cost accountant or chartered accountant, as the case may be Purportedly acting under amended rule fresh letters were issued which were challenged in W.P. (C) 5192 of 2015 titled as Megacabs Pvt. Ltd. vs. Union of India challenging the validity of amendment in rules. This Hon ble Court has declared that the said amendment is ultra vires to the Finance Act.

11 2017 The Constitution of India was amended vide in 101 st Constitutional Amendment Act, 2016 which in effect on and the provision for Goods & Service Tax Act were enacted. As a consequence there of the Finance Act, 1994 and Service tax provisions made there on stands repealed That Respondent No. 1 has written a letter intimating the petitioner for conducting Service Tax and Central Excise Audit purportedly under Section 174 sub clause 2 reads with Rule 5 (A) of Service Tax Rule, 1994, which are repealed. Aggrieved thereby, this petition is being filed. Hence, this petition.

12 IN THE HIGH COURT OF DELHI AT NEW DELHI EXTRA ORDINARY ORIGINAL CIVIL WRIT JURISDICTION WRIT PETITION (CIVIL) NO. OF 2018 IN THE MATTER OF:- KTC (India) Pvt. Ltd. Versus Commissioner of Central GST Audit-II Delhi And Other Petitioner Respondents WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SEEKING ISSUANCE OF DECLARTION THAT THE IMPUGNED LETTER DATED FOR MANDATING THE PRODUCTION OF DOCUMENTS, IS ILLEGAL AND UNCONSTITUTIONAL AND THUS SET ASIDE THE SAME. TO, THE HON BLE CHIEF JUSTICE AND THE OTHER COMPANION JUDGES OF THE HON BLE HIGH COURT OF DELHI, AT NEW DELHI. THE HUMBLE PETITION OF THE PETITIONER ABOVE NAMED. MOST RESPECTFULLY SHOWETH THAT: -

13 1. That the present petition is under 226 of Constitution of India is being filed seeking inter alia a) Declaration that the impugned letter mandating the production of following documents: i. Copies of Balance Sheet, Trial Balance and Annual Financial Statement for the years to (up to June), ii. Annual returns submitted to the Registrar of Companies, Sales Tax Returns, Copies of Excise/Service Tax Returns, and Income Tax Returns along with Annexure for the financial years to (up to June). iii. Returns if any submitted to Banks/Financial Institutions for the period to (up to June). is without authority of law and thus illegal and unconstitutional. b) Issuance of Writ/Order/ Direction in nature Certiorarified mandamus quashing the letter dated with consequential relief.

14 Further, the petitioner is seeking an ad interim, ex-parte mandamus restraining the respondents from giving effect to the Impugned letter True Copy of the letter dated issued by the Respondent has been annexed herewith this Petition as ANNEXURE A That the Respondents are That the Respondents are public authorities amenable to Writ Jurisdiction this Hon ble Court under Article 12 of the Constitution of India. 3. No caveat has been received in this matter. 4. That the impugned notice date has been issued by the Respondent No. 1 who is stationed in the territorial jurisdiction of the Hon ble Court and thus clothe the request jurisdiction to this Hon ble Court under Article 226 of the Constitution of India. BRIEF FACTS 5. The indispensible skeletal facts introduce the Petitioner M/s Karachi Taxi Company as the company registered under Companies Act, 1956 and is engaged in the business of car rental and is an Assesse for Service Tax since That on Rule 5A of Service Tax Rules, 1994 came into force, it thus reads: Rule 5 (a): Access to registered premises. (1) An officer authorised by the [Principal Commissioner or Commissioner] in this behalf shall have access to any premises registered under these rules for the purpose of carrying out any scrutiny, verification and checks

15 as may be necessary to safeguard the interest of revenue. (2) Every assesse, shall, on demand make available to the officer empowered under sub-rule (1) or the audit party deputed by the Commissioner or the Comptroller and Auditor General of India, or a cost accountant or chartered accountant nominated under section 72A of the Finance Act, 1994,- (i) the records maintained or prepared by him in terms of sub-rule (2) of rule 5; (ii) the cost audit reports, if any, under section 148 of the Companies Act, 2013 (18 of 2013); and (iii) the income-tax audit report, if any, under section 44AB of the Incometax Act, 1961 (43 of 1961), for the scrutiny of the officer or the audit party, or the cost accountant or chartered accountant, within the time limit specified by the said officer or the audit party or the cost accountant or chartered accountant, as the case may be. 7. That one Assesse namely, Travelite (India) was served with letter dated by the Respondent seeking records for period till for scrutiny of an audit party. Writ petition No of 2013 was instituted before this Hon ble Court to challenge the notice dated seeking records for scrutiny of audit party on the ground Rule 5 (A) sub clause 2 of Service Tax Rules, 1994 is ultra vires. The said Writ Petition was allowed holding the said rule and CBEC instruction providing for such audit as unconstitutional. True Copy of Judgment in Writ petition No of 2013 dated is herewith annexed as ANNEXURE A-2 8. That notification The Notification no. 23/2014 dated led to amendment in Rule 5 (A) sub clause 2 of Service Tax Rules,1994

16 in exercise of power conferred under Section 94 sub clause 2 (k) of Finance Act, 1994 empowering the authorities to demand documents mentioned hereunder.in the Service Tax Rules, 1994, in rule 5A, for sub-rule (2), the following sub-rule shall be substituted, namely:- (2) Every assessee, shall, on demand make available to the officer empowered under sub-rule (1) or the audit party deputed by the Commissioner or the Comptroller and Auditor General of India, or a cost accountant or chartered accountant nominated under section 72A of the Finance Act, 1994,- (i) the records maintained or prepared by him in terms of sub-rule (2) of rule 5; (ii) the cost audit reports, if any, under section 148 of the Companies Act, 2013 (18 of 2013); and (iii) the income-tax audit report, if any, under section 44AB of the Income-tax Act, 1961 (43 of 1961), for the scrutiny of the officer or the audit party, or the cost accountant or chartered accountant, within the time limit specified by the said officer or the audit party or the cost accountant or chartered accountant, as the case may be. 9. That purportedly acting under amended rule fresh letters were issued which were challenged in W.P. (C) 5192 of 2015 titled as Megacabs Pvt. Ltd. vs. Union of India challenging the validity of amendment in rules. This Hon ble Court has declared that the said amendment is ultra vires to the Finance Act. True Copy of Judgment W.P. (C) 5192 of 2015 titled as Megacabs Pvt. Ltd. vs. Union of India is herewith annexed as ANNEXURE A- 3

17 10. That the Constitution of India was amended vide in 101 st Constitutional Amendment Act, 2016 which in effect on and the provision for Goods & Service Tax Act were enacted. As a consequence thereof, the Finance Act, 1994 and Service tax provisions made thereon, stand repealed. 11. That Respondent No. 1 has written a letter dated intimating the petitioner for conducting Service Tax and Central Excise Audit purportedly under Section 174 sub clause 2 reads with Rule 5 (A) of Service Tax Rule, 1994, which are, now, repealed. 12. GROUNDS That present petition is being filed, inter alia, of the following grounds independent of one another. I. Because the Impugned Letter dated founded upon the provision contained in Section 174 sub-clause 2 reads of Rule 5 A of Service Tax Rules, 1994 as amended and Rule 22 of Central Excise Rule, 2002 is illegal in as much as the vary provisions on which it is founded which do not vest in Respondent, the authority to conduct the audit. II. Because after enactment of Goods and Services Act, the provisions contained in Chapter V of the Finance Act, 1994 stands repealed and therefore, invoking the said provision at this stage would tantamount to giving effect to the provisions

18 of dead law. The contentions are without prejudice to the argument, that even the invocation of dead law cannot confer any power to hold audit in such circumstances. III. Because argumentum a contrario, section 173 of CGST Act does not save the dead law as contained in Rules 5 A of Service Tax Rules, 1994 or any transaction thereunder or provisions of Chapter V of Finance Act 1994 and thus the said provisions cannot be invoked for issuance of notice. IV. Because the impugned notice founded on provision which has been adjudged ultra vires by this Hon ble Court in Megacabs, makes the same as illegal. V. Because it is settled law that once a provision of a statute or delegated legislation or administrative instruction has been adjudged as ultra vires by a constitutional court, the same cannot be used as a provision for conferment of power to the executive. The neat effect of ultra-vires provision is that it is nullity in the eye of law-recourse to it-notwithstanding the judgment of the constitutional court, will tantamount to giving effect to a provision which could not have been, by virtue of incompetence of executive or legislature as the case may be, enacted.

19 VI. Because the notices in identical terms have been issued to assesse in past and were subjected to challenge before this Hon ble Court. The first round of constitutional adjudication qua the constitutionality of Rule 5A(2) Rules 5 A of Service Tax Rules, 1994 and corresponding CBEC instruction, led to judgment in Travelite(Supra) whereby, Bhat J, speaking for the Court was pleased to hold that the rule 5A(2) and CBEC circular (which is mere instrument of instruction bereft of statutory character) founded thereon, are ultra vires the Finance Act This was resisted by the legislature by bringing an amendment to section 94 of the Finance Act vide Finance Act 1994 w.e.f 06 th August 2014 by inserting clause (k) to subsection (2) having effect of "imposition, on persons liable to pay service tax, for the proper levy and collection of tax, of duty of furnishing information, keeping records and the manner in which such records shall be verified. Consequent thereon, the executive has amended the Service Tax rules and erstwhile rule 5A(2) was replaced by new rules, the said rule was further assailed in Megacabs(Supra) and this Hon ble Court has ruled the said rules to be painly ultra vires. Notwithstanding the same, the Respondents have served the present notice in identical terms calling for special audit. Both the stages of constitutional adjudication in Travelite (Supra) and Mega cabs(supra) have held the rule 5A(2) as it exists, respectively, on both occasion, to be ultra vires.

20 Clinching judicial reasoning stated in both the judgments affirms, the conclusion that the special audit is beyond the rule making powers. Further to this, one decisive basis of constitutional adjudication was formulated on premise that only in circumstances stated in section 72A of the Finance Act, the special audit can occasion and at no other stage. The relevant provision of section 72A, deserves note-it thus runs: 72A. Special Audit: (1): If the Commissioner of Central Excise, has reasons to believe that any person liable to pay service tax (herein referred to as ''such person'') (i) has failed to declare or determine the value of a taxable service correctly; or (ii) has availed and utilised credit of duty or tax paid- a)which is not within the normal limits having regard to the nature of taxable service provided, the extent of capital goods used or the type of inputs or input services used, or any other relevant factors as he may deem appropriate; or (b) by means of fraud, collusion, or any wilful misstatement or suppression of facts; or (iii) has operations spread out in multiple locations and it is not possible or practicable to obtain a true and complete picture of his accounts from the registered premises falling under the jurisdiction of the said Commissioner, he may direct such person to get his accounts audited by a chartered accountant or cost accountant nominated by him, to the extent and for the period as may be specified by the Commissioner. (2) The chartered accountant or cost accountant referred to in sub-section(1) shall, within the period specified by the said Commissioner, submit a report duly signed and certified by him to the said Commissioner mentioning therein such other particulars as may be specified by him. (3) The provisions of sub-section (1) shall have effect notwithstanding that the accounts of such person have been audited under any other law for the time being in force.

21 (4) The person liable to pay tax shall be given an opportunity of being heard in respect of any material gathered on the basis of the audit under Subsection (1) and proposed to be utilised in any proceeding under the provisions of this Chapter or rules made thereunder. Explanation. - For the purposes of this section-- (i) (ii) "chartered accountant" shall have the meaning assigned to it in clause (b) of sub-section (1) of section 2 of the Chartered Accountants Act, 1949; "cost accountant" shall have the meaning assigned to it in clause (b) of sub-section (1) of section 2 of the Cost and Works Accountants Act, 1959." The bare reading of said provision reflects that unless the preconditions specified in the said provision is satisfied the special audit cannot be initiated. The impugned notice, in no manner, illustrates as to how the above provisions are satisfied occasioning the notice for special audit. The relevant excepts from Megacabs, is illuminating, it thus reads: 20. The scheme of Section 72A is that in the first instance the Commissioner has to record "reasons to believe" that the person who is liable to pay service tax has: "(i) failed to correctly declare or determine the value of the taxable service; or (ii) wrongly availed or utilised credit or paid tax beyond the normal rebates having regard to the nature of the taxable services provided or by means of fraud, collusion or any wilful misstatement or suppression of facts; or (iii) operations spread out in multiple locations and it is not practicable to obtain a true and complete picture of the accounts from the registered premises in the jurisdiction of the concerned Commissionerate." 2 1. It is only where one of the above three contingencies exists that the Commissioner may direct the Assessee to "get his accounts audited either by a Chartered Accountant or a Cost Accountant nominated by such Commissioner". The extent of the audit and the period for which it should be conducted is also to be specified by the Commissioner.

22 VII. Because reasons to believe is pre condition of formation of opinion of existence of circumstances enumerated in section 72A; the failure of revenue to explicate the formation of opinion on the basis of reasons to believe, nullified the act of issuance of notice. Contextually put, the classical exposition of law by Ray CJ, in AIR1974SC 2249 MA Rashid v Kerala as under: 8. Where powers are conferred on public authorities to exercise the same when "they are satisfied" or when "it appears to them", or when "in their opinion" a certain state of affairs exists; or when powers enable public authorities to take "such action as they think fit" in relation to a subject matter, the Courts will not readily defer to the conclusiveness of an executive authority's opinion as to the existence of a matter of law or fact upon which the validity of the exercise of the power is predicated. 9. Where reasonable conduct is expected the criterion of reasonableness is not subjective, but objective. Lord Atkin in Liversidge v. Anderson [1942] A.C. 206 said "If there are reasonable grounds, the judge has no further duty of deciding whether he would have formed the same belief any more than, if there is reasonable evidence to go to a jury, the judge is concerned with whether he would have come to the same verdict". The onus of establishing unreasonableness, however, rests upon the person challenging the validity of the acts. 10. Administrative decisions in exercise of powers even conferred in subjective terms are to be made in good faith on relevant considerations. The courts inquire whether a reasonable man could have come to the decision in question without misdirecting himself on the law or the facts in a material respect. The standard of reasonableness to which the administrative body is required to conform may range from the court's own opinion of what is reasonable to the criterion of what a reasonable body might have decided. The courts will find out whether conditions precedent to the formation of the opinion have a factual basis. (Emphasis mine)

23 Tested on this touch stone, the impugned notice is vulnerable. VIII. Because the after enactment of CGST Act 2017, vide section 173 chapter V of Finance Act 1994 is omitted and no saving for the same is provided under section 174 of the Act. Thus the impugned notice, is without authority of law and thus unconstitutional. IX. Because it is settled law that no validation by way of amendment can be done to a provision which has been declared ultra vires, unless the basis of judicial decision leading to its unconstitutionality is removed in such a manner so as to disable the court from reaching to said conclusion by its interpretative process under amended provision. X. Because the impugned notice cannot call for records of past as no retrospective provision having such effect is validly enacted to cloth the Respondent with requisite powers. XI. Because the identical notices served by the Respondents have been stayed by the Hon ble Calcutta and Gujrat High Courts. XII. Because it is trite law rules must conform to statute under which it was framed, and must be within rule making powers of authority. (Municiple Corporation vs Birla Cotton AIR1968 SC 1232 and General officer Commanding in chief vs Subhash Chandra Yadav (1988) 2 SCC 351).

24 XIII. Because it is settled law as stated in Pahwa Chemicals P Ltd. CCE, Delhi MANU/SC/0144/2005 : 2005 (181) ELT 339 (SC) and Collector Central Excise, Bhopal v. Ram Melting & Wire Industries, MANU/SC/4587/2008 : (2008) 13 SCC 1 that the impugned instruction, which stipulates the modalities for the conduct of the audit, cannot widen the scope of the law. Likewise, a substantive obligation, such as that of handing over records to an audit party, cannot find its basis in a non-statutory instrument like the Service Tax Manual. XIV. Because in any event, an audit, since it carries civil consequences, cannot be ordered without a notice issued to the assessee, indicating reasons for the audit.(sahara India v. CIT MANU/SC/7260/2008 : (2008) 14 SCC 151) 13. That the petitioner has not file any other petition for similar relief in this court or any other court. PRAYER 14. In the facts and circumstances stated herein above, it is Most Respectfully prayed that this Hon ble Court may graciously be pleased to:

25 a. Declare that the impugned letter dated (Annexure No.1 at page ) is without authority of law and thus illegal and unconstitutional; b. Issue a writ, order or direction in the nature of certiorarified mandamus quashing the impugned letter dated (Annexure No.1 at page ). c. Declare that the provision as contained in rule 5A(2) of Service Tax Rules 1994 is non est and inoperative. d. Pass such other order or orders as this Hon ble Court may deem fit in the facts and circumstances of the case. AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IN DUTY BOUND SHALL EVER PRAY Filed by Place: New Delhi Date:05 /12 /2018 (Anurag Ojha)(D.N. Chaturvedi) CORPORATE JUDIS advocates & solicitors Counsel for petitioner Chamber No. 346A, Lawyer s Chamber-I, Delhi High Court-Delhi (M)

26 IN THE HIGH COURT OF DELHI AT NEW DELHI EXTRA ORDINARY ORIGINAL CIVIL WRIT JURISDICTION CM NO. OF 2018 IN WRIT PETITION (CIVIL) NO. OF 2018 IN THE MATTER OF:- KTC (India) Pvt. Ltd. Petitioner Versus Commissioner of Central GST Audit-II Delhi And Other Respondents APPLICATION UNDER ARTICLE 226 OF THE COSTITIUTION OF INDIA READ WITH SECTION 151 OF THE CODE OF CIVIL PROCEDURE, 1908 FOR INTERIM RELIEF WITH AFFIDAVIT. TO, THE HON BLE CHIEF JUSTICE AND THE OTHER COMPANION JUDGES OF THE HON BLE HIGH COURT OF DELHI, AT NEW DELHI. THE HUMBLE PETITION OF THE PETITIONER ABOVE NAMED. MOST RESPECTFULLY SHOWETH THAT: - 1. That the accompanying petition is under 226 of Constitution of India is being filed seeking inter alia, a)declaration that the impugned letter mandating the production of following documents:

27 i. Copies of Balance Sheet, Trial Balance and Annual Financial Statement for the years to (up to June), ii. Annual returns submitted to the Registrar of Companies, Sales Tax Returns, Copies of Excise/Service Tax Returns, and Income Tax Returns along with Annexure for the financial years to (up to June). iii. Returns if any submitted to Banks/Financial Institutions for the period to (up to June). is without authority of law and thus illegal and unconstitutional. b) Issuance of Writ/Order/ Direction in nature certiorarified mandamus quashing the letter dated with consequential relief. Further, the petitioner is seeking an ad interim, ex-parte mandamus restraining the respondents from giving effect to the Impugned letter That the full facts and circumstances of the case is narrated in accompying petition and thus the same are not repeated herein for sake of brevity. The present application shall be treated part and parcel of the same. 3. That the impugned letter dated has been issued under the provision of rule 5A(2) of Service Tax Rules- the said rules are already adjudged as unconstitutional by this Hon ble Court notwithstanding the same the impugned notices are effected. Added to this, is the fact that the enactment of CGST Act 2017 has repealed the principal Finance Act 1994 and the service Tax rules thereunder, in such circumstances, there is no power vested in Respondent, to take recourse to repealed provisions for

28 giving effect to it. Even otherwise, the special audit-sought to be done under impugned letter, is only permissible even under the old service Tax regime- in cases where the preconditions stated in section 72-A of Finance Act 1994 are satisfied. Thus, clearly the impugned letter is without jurisdiction or authority of law and thus deserves to be set at naught. The non grant of injunction against operation, would irreparably affect the petitioner and would be in the nature of perpetuation of illegalities writ large. Prayer 4. In the facts and circumstances stated herein above, it is Most respectfully prayed that this Hon ble Court may graciously be pleased to: a) Stay the operation of impugned letter dated (Annexure No.1 at page ) during pendency of the writ petition; b) Pass such other order or orders as this Hon ble Court may deem fit in the facts and circumstances of the case. AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IN DUTY BOUND SHALL EVER PRAY Filed by Place: New Delhi Date:05 / 12 /2018 (Anurag Ojha)(D.N. Chaturvedi) CORPORATE JUDIS advocates & solicitors Counsel for petitioner Chamber No. 346A, Lawyer s Chamber-I, Delhi High Court-Delhi (M)

29 IN THE HIGH COURT OF DELHI AT NEW DELHI EXTRA ORDINARY ORIGINAL CIVIL WRIT JURISDICTION WRIT PETITION (CIVIL) NO. OF 2018 IN THE MATTER OF:- KTC (India) Pvt. Ltd. Versus Commissioner of Central GST Audit-II Delhi and Anr. Petitioner Respondent MEMO OF PARTIES KTC (India) Pvt. Ltd Through(Its Director) Road No. -6, RZ-A/96, Street No.9, Mahipalpur Extention, New Delhi Petitioner Versus 1. Commissioner of Central GST Audit-II Delhi 1 st Floor,EIL Annexe Building, Bhikaj Kama Place, New Delhi Respondent No.1 2. Ministry of Finance Department of Revenue Through its Secretary Rajpath Marg, E Block, Central Secretariat, New Delhi, Delhi Respondent No.2 Filed by Place: New Delhi

30 Date:05 / 12 /2018 (Anurag Ojha)(D.N. Chaturvedi) CORPORATE JUDIS advocates & solicitors Counsel for petitioner Chamber No. 346A, Lawyer s Chamber-I, Delhi High Court-Delhi (M)

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