APRIL 22, 2026

Luxury Litigation

By Vijay Kumar

IN GST disputes, some taxpayers treat 'reply to show cause notice' as a redundant ritual. Why bother with statutory procedure when the High Court is just a writ away?

In a recent judgement in Ascensia Diabetes Care India Pvt. Ltd. v Union of India - 2026-TIOL-573-HC-MUM-GST, the Bombay High Court observed,

We find that there is an increase in the tendency in the litigants to bypass the statutory procedure and approach the High Court in proceedings under Article 226 of the Constitution in challenging the show cause notices, sometimes even before reply to the show cause notices are filed and obviously before a view is taken by the proper officer.

Reply to show-cause notice is not optional; it is the process.

The Facts:

This petition under Article 226 of the Constitution of India, essentially challenges the show cause notice dated 3 August 2024. At the outset, it may be noted that without filing a reply to the notice, the petitioner has approached the High Court.

The Petitioner submitted that:

1. It is engaged in the import and sale of complete blood glucose monitoring system falling under the HSN 90278990.

2. On 24 February 2023, the Chief Commissioner CGST & CX, Mumbai Zone directed the Commissioner CGST & CX, Thane to verify tax compliance by the petitioner and recover tax dues, based on the alleged short payment of tax owing to mis-declaration of supply of the goods "Blood Glucose Monitoring System" and consequent discharge of GST liability @12% instead of applicable GST @18%.

3. On 21 April 2023, a summons under Section 70 of the GST Act was issued to the petitioner. In compliance, the authorized signatory of the petitioner appeared before the Superintendent, (Anti Evasion) CGST and CX, Thane on 26 April 2023, wherein a statement was recorded.

4. On 31 July 2024, pre-show cause notice intimation (DRC-01A) was issued alleging short payment of tax during the period July 2017 to January 2023, whereby the petitioner was called upon to pay tax along with applicable interest and penalty under Section 74(5) of the CGST Act by 1 August 2024.

5. It filed a detailed reply dated 31 July 2024, which was received by the Joint Commissioner (Anti Evasion) on 1 August 2024 highlighting the fact that it received the notice on 31 July 2024 and to reply on 1 August 2024 within 1 day, is practically impossible to adhere to. Also, an e-mail was addressed on 1 August 2024 requesting for additional time for a detailed reply to be submitted

6. However, without an opportunity of being heard, the impugned show cause notice dated 3 August 2024 was issued.

7. The show cause notice has been assailed on the ground that it is vague.

The High Court observed:

- The petitioner's assertion that it would not reply to the show cause notice on any count, and it is only the High Court which would adjudicate the petitioner's contentions on the show cause notice is not the correct approach.

- It is clear from the record that there was substantial material which was available as specifically noted by the proper officer in the show cause notice, which was inter alia on the basis of the survey and the documents as submitted on behalf of the petitioner, that there was reason to believe that the petitioner was liable to pay tax of Rs. 5.99 Crore.

- The petitioner's contention that there is no bifurcation on the said liability and for the period etc. would not impress us, as the show cause notice itself has stated that the sales liability is in respect of period 2017-18 to 2022-23 and up to January 2023. If such assertion of the department is not correct, the petitioner is not precluded from raising such contention in reply to the show cause notice. It is hence necessary for the petitioner to raise such case in reply to the show cause notice and to point out to the officer the correct position.

- We find that there is an increase in the tendency in the litigants to bypass the statutory procedure and approach the High Court in proceedings under Article 226 of the Constitution in challenging the show cause notices, sometimes even before reply to the show cause notices are filed and obviously before a view is taken by the proper officer.

- It cannot be held as a matter of routine that the moment a show cause notice is issued, the party on some or the other ground, by labelling the same to be a jurisdictional issue can approach the High Court to assail the show cause notice and stall the proceedings of the notice.

- Such litigation, in our opinion, needs to be deprecated, as this would amount to complete discarding of the statutory procedure mandated under the provisions of the concerned laws, whereunder not only an opportunity is available to the assessee to respond to the show cause notice on all counts including on jurisdiction, but also, a remedy of an appeal is available to assail any order which would be passed on the show cause notice, and still a further appeal before the Tribunal.

- However, very frequently such statutory mechanism is being circumvented with impunity, knowing well that there are disputed questions of fact and/or issues which can be certainly gone into, in reply to the show cause notice, and Writ Petitions are nonetheless filed, and on such petitions a vehement assertion is put up before the Court as if the Court does not have any other pressing proceedings, except to entertain such Writ Petitions.

- This in our opinion, amounts to a litigant taking selective chances, as such litigants has means to resort to such luxury litigation. Such litigation would be nothing short of an abuse of the process of law in a given situation, deserving it to be dismissed with costs for waste of valuable judicial time.

- The present case is one of such cases, where contentions which can be easily, certainly, conveniently and appropriately gone into by the proper officer are sought to be urged before the Court in the present proceedings.

- If such contentions as urged on behalf of the petitioner are to be entertained by the High Court in the proceedings under Article 226 of the Constitution, in our opinion, not a single show cause notice can proceed and every show cause notice would be assailed before this Court. This is certainly not the law.

- The relief a party may seek by assailing the show cause notice in a given case can be entertained considering the settled principles of law, when the show cause notice is wholly without jurisdiction and/or by any rationale, the same cannot be issued under the parameters the law would mandate and which on the face of it is illegal.

- However, the moment there is an element of debate, enquiry, investigation etc., the same cannot be subject matter of adjudication in the proceedings of a Writ Petition. The present case is not such an exceptional case that we need to exercise discretion and entertain a Writ Petition against the show cause notice.

The High Court dismissed the petition with liberty to the petitioner to file a reply to the show cause notice within a period of four weeks, keeping all contentions of the parties open.

Why should a party rush to a High Court instead of going through the appellate channels?

The reasons are familiar. Pre-deposit is painful, officers are often seen as unsympathetic, and a writ order looks more glamorous than a departmental order. But convenience is not a legal doctrine. As the Court held, writ jurisdiction is meant for truly exceptional cases - not for every taxpayer who would rather skip the queue than join it. To treat writ jurisdiction as a premium shortcut is to misuse it.

Convenience may be a virtue in commerce, but not in constitutional law.

This 'bypass' strategy isn't new; it has roots stretching back to the pre-GST era

Those were Service Tax days, just before GST was launched. The Commissioner passed an order demanding a tax and penalty of about 110 crore rupees in 2016 on an Educational Academy. The academy instead of filing an appeal in the Tribunal, filed a writ petition in the High Court challenging the order on ground of limitation. It was stated that if they appealed to the Tribunal, they would have to make a pre-deposit of about 4 crore rupees. The High Court entertained the writ in spite of the availability of alternate remedy, observing: (NRI ACADEMY v UNION OF INDIA- 2018-TIOL-2100-HC-AP-ST)

In so far as availability of the appellate remedy is concerned, it is well settled that refusal by this Court to entertain a writ petition on the ground of existence of an alternative remedy is in exercise of self-imposed restraint, guided by settled principles and judicious exercise of discretion and it would ultimately depend upon the facts of the individual case as to whether this Court would choose to do so or not.

However, even if a writ petition is entertained, it cannot be equated with an appellate remedy and the scope of judicial review would only be on limited recognized grounds, compared to the wider scope of appellate jurisdiction.

Keeping this aspect in mind, we propose to adjudicate this writ petition as the issue of limitation has been raised which would go to the root of the matter.

And the High Court found that invocation of the extended period of limitation was justified on facts and dismissed the writ petition. The case is now pending before the Supreme Court.

The lesson is simple: writ jurisdiction is not a premium shortcut. It's a constitutional safeguard, meant for exceptional cases-not for every taxpayer unwilling to file a reply. Luxury litigation is not just the indulgence of one taxpayer. It burdens the system. Every premature writ consumes judicial time that could have been spent on pressing matters-constitutional rights, criminal appeals, public interest litigations.

Judicial time is a public resource, not a private amenity.