Bombay High Court
Foodlink F And B Holdings India Limited vs The Union Of India And Ors on 4 March, 2026
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
2026:BHC-AS:14886-DB WP(L) 5576 OF 2026(1).DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
LAXMI
SUBHASH
SONTAKKE
CIVIL APPELLATE JURISDICTION
Digitally signed
by LAXMI
SUBHASH
SONTAKKE WRIT PETITION (L) NO. 5576 OF 2026
Date: 2026.03.27
19:11:20 +0530
Foodlink F & B Holdings (India) Petitioner
Versus
Union of India & Ors. Respondents
_______
Mr. Vikram Nankani, Senior Advocate a/w Mihir Mehta & Vikas Poojary i/b. PDS
Legal for Petitioner.
Mr. Karan Adik a/w Megha Bajoria, Chirag Sawant & Sangeeta Yadav for the
Respondent.
_______
CORAM: G. S. KULKARNI &
AARTI SATHE, JJ.
DATE: 04th March 2026
P.C.
1. Not on board. Taken on board. Rule. Rule made returnable forthwith.
By consent taken up for hearing.
2. This petition under Article 226 of the Constitution of India is filed
praying for the following substantive reliefs, which read thus: -
"(a) this Hon'ble Court be pleased to issue a Writ of Certiorari or a
writ in the nature of Certiorari or any other writ, order or direction
under Article 226 of the Constitution of India calling for the
records pertaining to the Petitioner's case and after going into the
validity and legality thereof to quash and set aside the impugned
cryptic Intimation of tax ascertained as being payable under Section
74(5) of the CGST Act in Form GST DRC 01A dated 17.02.2026
(DIN 20260267VW000000B79A) (Exhibit A);
(b) this Hon'ble Court be pleased to issue writ of Prohibition or
any other appropriate writ in the nature of Prohibition ordering
and directing the Respondents, their successors, subordinates or
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servants and agents not to take any steps or proceedings in
furtherance of or in pursuance of the impugned Intimation of tax
ascertained as being payable under Section 74(5) of the CGST Act
in Form GST DRC 01A dated 17.02.2026 (DIN
20260267VW000000B79A) pending further verification by the
Learned Chartered Accountant Mr. Sagar Shah appointed by the
Respondents in pursuance of and in compliance of Order dated
14.03.2024 passed by this Hon'ble Court and without considering
and applying the findings of verification report dated 26.04.2024
submitted by the said Chartered Accountant and further report to
be submitted of further verification by him;
(c) In the alternative to prayers (a) and (b) above, this Hon'ble
Court be pleased to issue writ of Mandamus or any other
appropriate writ in the nature of Mandamus ordering and directing
the Respondents, their successors, subordinates or servants and
agents to forthwith provide documents, calculations and basis on
which the Respondent no. 3 has ascertained the tax payable by the
Petitioner pursuant to the impugned cryptic Intimation of tax
ascertained as being payable under Section 74(5) of the CGST Act
in Form GST DRC 01A dated 17.02.2026
(DIN20260267VW000000B79A) (Exhibit A);
(d)pending the hearing and final disposal of the above Petition, this
Hon'ble Court be pleased to direct the Respondents, by themselves,
their officers, subordinates, servants and agents by an interim order
and injunction, to refrain from acting upon or taking any further
steps or proceedings in pursuance of and/or in furtherance of the
impugned Intimation of tax ascertained as being payable under
Section 74(5) of the CGST Act in Form GST DRC 01A dated
17.02.2026 (DIN 20260267VW000000B79A);
(e) for ad-interim relief in terms of prayers (c) above;
(f) this Hon'ble Court be pleased to hear the present Writ Petition
alongwith the Writ Petition no. 3406 of 2024 filed by the
Petitioner and pending before this Hon'ble Court."
3. We have passed substantial orders in similar facts on Writ Petition No.
3406 of 2024 and Interim Application No. 1695 of 2026, wherein the Writ
Petition has been disposed of as infructuous, and the Interim Application has been
dismissed. This Writ Petition is primarily a fallout of the proceedings which are the
subject-matter of challenge in Writ Petition No. 3406 of 2024 and the subject
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matter of challenge in the present petition is the intimation of tax ascertained
issued under Section 74(5) of the Central Goods and Services Tax Act, 2017
(hereinafter referred to as the "CGST Act") read with Rule 142(1A) of the Central
Goods and Services Rules, 2017 (hereinafter referred to as the "CGST Rules") in
Form GST DRC-01A dated 17th February 2026 (hereinafter referred to as the
"impugned intimation").
4. Briefly, the facts are as follows: -
i. The Petitioner is a company incorporated under the Companies Act,
2013, and is engaged in the business of providing catering services and operating
restaurants.
ii. On 08th August 2023, Respondent No. 2, i.e., the Commissioner of
CGST and Central Excise (AE), CGST & CEX, Navi Mumbai initiated an enquiry
against the Petitioner on receiving information that the Petitioner had availed
wrong/excess Input Tax Credit (ITC). It was further alleged in the enquiry that the
Petitioner did not pay Goods and Services Tax (GST) on the inter-bank transfers,
as the same form part of taxable supplies.
iii. The bank accounts of the Petitioner were provisionally attached vide
eight orders of the even date dated 27 th February 2024 (hereinafter referred to as
the "impugned attachment orders") issued in Form GST DRC - 22, and the banks
were directed that no debit must be allowed to be made by the Petitioner. The
Petitioners challenged the aforesaid impugned attachment orders by filing Writ
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Petition No. 3406 of 2024 in this Court. The prayers of Writ Petition No. 3406 of
2024 reads thus:-
"(a) this Hon'ble Court be pleased to issue a Writ of Certiorari or a
writ in the nature of Certiorari or any other writ, order or direction
under Article 226 of the Constitution of India declaring Section
83 of CGST Act, 2017 as it exists today, as ultra vires of Articles
14, 19 and 21 of the Constitution of India, for being wholly
unreasonable, unguided, without any accountability for its misuse
and manifestly arbitrary; or in the alternative, this Hon'ble Court
may please read down the extent, scope and application of Section
83 by explaining, guiding and delineating the same in a just
manner with such cautions, pre-requisites and consequences for
abuse thereof, so as to save it from unconstitutionality;
(b) this Hon'ble Court be pleased to issue a Writ of Certiorari or a
writ in the nature of Certiorari or any other writ, order or direction
under Article 226 of the Constitution of India calling for the
records pertaining to the Petitioner's case and after going into the
validity and legality thereof to quash and set aside the eight
impugned orders all dated 27.02.2024 passed by Respondent No.
2 purporting to attach the bank accounts of the Petitioner under
Section 83 of the Act (Exhibits Al to A8);
(c) this Hon'ble Court be pleased to appoint Chartered Account or
Costs Accountant to conduct a Special Audit in terms of Section
66 of the CGST Act and examine and verify the correctness of the
Reconciliation submitted with representations dated 25.10.2023,
29.11.2023, 20.12.2023, 15.01.2024, 23.01.2024, and 15.02:2024
of the Petitioner with their GST returns, Bank Statements, Books
of Accounts, Electronic Credit Ledger and submit its report before
this Hon'ble Court;
(d) That this Hon'ble Court be pleased to direct the Respondent
No. I to hold an inquiry into the conduct and role of the officials
who were instrumental in continuing to act on an information
found to be false, and instrumental in draconian attachment of
bank account without even examining and verifying the
correctness of the Reconciliation submitted with representations
dated 25.10.2023, 29.11.2023, 20.12.2023, 15.01.2024,
23.01.2024, and 15.02.2024 of the Petitioner in wholly arbitrary
manner;
(e)this Hon'ble Court be pleased to issue writ of Prohibition or any
other appropriate writ in the nature of Prohibition ordering and
directing the Respondents more particularly Respondent No. 2,
not to debit any amount from the bank accounts which are under
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attachment vide impugned orders dated 27.02.2024 passed by
Respondent No. 2;
(f) that pending the hearing and final disposal of the above
Petition and subject to such terms and conditions as may deem just
and expedient, this Hon'ble Court be pleased to stay the effect and
operation of impugned orders dated 27-02-2024 passed by
Respondent No. 2"
iv. During the pendency of Writ Petition No. 3406 of 2024, Respondent
No. 2 vide order dated 11 th March 2024 continued the provisional attachment of
the Petitioner's bank accounts in the interests of protecting Government Revenue.
v. The Petitioner therefore amended Writ Petition No. 3406 of 2024,
adding a prayer for quashing the order dated 11 th March 2024 passed by
Respondent No. 2 which reads thus:-
"b1. this Hon'ble Court be pleased to issue a Writ of Certiorari or a
writ in the nature of Certiorari or any other writ, order or direction
under Article 226 of the Constitution of India calling for the
records pertaining to the Petitioner's case and after going into the
validity and legality thereof to quash and set aside the impugned
order dated 11.03.2024 passed by Respondent No. 2 disposing off
the representation made by the Petitioner under Rule 159 of the
CGST Rules, 2017 and the continuing the provisional attachment
of the 37 bank accounts of the Petitioner provisionally attached
vide the impugned attachment orders dated 27.02.2024;"
vi. This Court by an order dated 14th March 2024 passed in Writ Petition
No. 3406 of 2024 directed Respondent No. 2 to appoint an independent
Chartered Accountant to verify the records of the Petitioner by way of special audit
under Section 66 of the CGST Act. Respondent No. 2 complying with the order
dated 14th March 2024 appointed Mr. Sagar Shah as the Chartered Accountant on
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18th March 2024 for assistance in the verification, whereby the Petitioner
participated in the investigation and submitted all relevant documents.
vii. The Chartered Accountant submitted his report on 24th March 2024
which subsequently was placed on record by Respondent Department before this
Court by way of an Additional Affidavit on 26th March 2024. The Petitioner also
filed their affidavit in rejoinder dated 27 th March 2024 in response to the
Additional Affidavit dated 26th March 2024 filed by the Deputy Commissioner.
viii. The Petitioner thereafter filed an Additional Affidavit dated 26th March
2024 placing on record the correspondence undertaken by them with the
Chartered Accountant during the course of verification undertaken in pursuance of
the directions of this Court.
ix. The Chartered Accountant was directed to undertake the exercise of
checking the credibility and authenticity of the inter-bank transactions of the
Petitioner along with filing report of the same vide order dated 28 th March 2024
passed by this Court in Writ Petition No. 3406 of 2024. The Chartered
Accountant filed his report on 26th April 2024.
x. The Petitioner placed on record the details of the events/proceedings
subsequent to passing of order dated 28 th March 2024 till submission of report by
the Chartered Accountant on 26th April 2024 by way of an Additional Affidavit
dated 29th April 2024.
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xi. The Petitioner thereafter filed Interim Application No. 1695 of 2026
before this Court in Writ Petition No. 3406 of 2024, seeking directions to the
Respondent Department to call for an additional report from the Chartered
Accountant qua the entries relating to the amount of Rs. 10.28 Crores, which could
not be triangulated by the Chartered Accountant in its initial report. This Court by
a separate order of even date has dismissed the aforesaid interim application and
disposed of Writ Petition No. 3406 of 2024 as infructuous as per reasons recorded
therein.
xii. During the pendency of Interim Application No. 1695 of 2026 in Writ
Petition No. 3406 of 2024, the impugned intimation dated 17 th February 2026 in
Form DRC-01A was issued to the Petitioner under Section 74(5) of the CGST Act,
inter alia raising a demand of Rs.1,35,91,41,680/-, as ascertained for the Financial
Years (FY) 2021-2022 to 2023-2024, along with applicable interest and penalty
towards GST liability payable by the Petitioner.
xiii. The Petitioner filed a preliminary reply/objection dated 24 th February
2026 to the impugned intimation dated 17th February 2026 to pay tax in Part B of
Form DRC-01A.
5. It is this impugned intimation dated 17th February 2026 that the
Petitioner seeks to challenge through the present writ petition. The issue therefore
which has fallen for consideration before this court is whether the impugned
intimation issued under Section 74(5) of the CGST Act read with Rule 142(1A) of
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the CGST Rules has been correctly issued to the Petitioner raising a demand of
Rs.1,35,91,41,680/.
6. Learned Senior Counsel Mr. Vikram Nankani, has submitted that the
issuance of the impugned intimation under Section 74(5) of the CGST Act read
with Rule 142(1A) of the CGST Rules to the Petitioner has been issued arbitrarily
and without considering the facts of the present case. It is further his submission
that the impugned intimation is a vague and cryptic intimation without any details.
He also submitted that the said intimation does not make any reference to any
record, submission or documents submitted by the Petitioner during the course of
the investigation and does not make a reference to the Chartered Accountant's
report dated 26th April 2024 who was appointed by Respondent No.2 in terms of
order of this Court dated 14 th March 2024 under the provisions of the Section 66
of the CGST Act. It is therefore his submission that once the special auditor has
given his report and there are no adverse observations made by the special auditor
in the aforesaid report, the Respondent Department cannot initiate purported tax
demands by way of the impugned intimation. It is also his submission that no
orders have been passed insofar as the impugned intimation is concerned
ascertaining the tax liability and therefore there has not been a proper adjudication
made by the Respondent Department prior to issuing the impugned intimation.
7. We have heard learned senior counsel, Mr. Vikram Nankani, and Mr.
Prakash Shah along with Advocates Mr. Mihir Mehta, and Mr. Vikas Poojary on
behalf of the Petitioner. We have also heard Mr. Karan Adik, Ms. Megha Bujaria,
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Mr. Chirag Sawant and Ms. Sangeeta Yadav on behalf of the Respondents. We have
perused the impugned intimation and also the proceedings. Considering that the
challenge is only to the impugned intimation notice, we are of the view that the
filing of the present writ petition is a premature step taken by the Petitioner, and
there has been no adjudication which has taken place prior to the issuance of the
impugned intimation. We are also of the view that now the special audit under
Section 66 of the CGST Act as directed by us in Writ Petition No. 3406 of 2024
has also been carried out, the benefit of that report can be taken into consideration
for adjudicating the demand if any payable by the Petitioner. This is a fact finding
process which we are not inclined to carry out in the present writ proceedings. We
have also considered the submission made by learned senior counsel Mr. Nankani
that Rule 142(1A) of the CGST Rules does not culminate into passing an order
raising a demand on the assessee and therefore the Petitioner is constrained to file
the present petition impugning the said intimation which has raised the demand
on the Petitioner. We are therefore of the view that the right course of action in the
present proceedings is for the Respondent Department to issue a show cause notice
and adjudicate the issue and post which once an order is passed on the show cause
notice, the same can be subject matter of challenge in appellate proceedings.
8. Further, Section 107 of the CGST Act provides for Appeals to the
Appellate Authority, and we are of the view that this alternative remedy can be
availed of by the Petitioner once an order post show cause notice on the impugned
intimation is passed by the authorities under the CGST Act. It would be beneficial
to reproduce Section 107 of the CGST Act which reads thus:-
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"107. Appeals to Appellate Authority.-- (1) Any person
aggrieved by any decision or order passed under this Act or the
State Goods and Services Tax Act or the Union Territory Goods
and Services Tax Act by an adjudicating authority may appeal to
such Appellate Authority as may be prescribed within three
months from the date on which the said decision or order is
communicated to such person.
(2) The Commissioner may, on his own motion, or upon request
from the Commissioner of State tax orthe Commissioner of
Union territory tax, call for and examine the record of any
proceedings in which an adjudicating authority has passed any
decision or order under this Act or the State Goods and Services
Tax Act or the Union Territory Goods and Services Tax Act, for
the purpose of satisfying himself as to the legality or propriety of
the said decision or order and may, by order, direct any officer
subordinate to him to apply to the Appellate Authority within
six months from the date of communication of the said decision
or order for the determination of such points arising out of the
said decision or order as may be specified by the Commissioner
in his order.
(3) Where, in pursuance of an order under sub-section (2), the
authorised officer makes an application to the Appellate
Authority, such application shall be dealt with by the Appellate
Authority as if it were an appeal made against the decision or
order of the adjudicating authority and such authorised officer
were an appellant and the provisions of this Act relating to
appeals shall apply to such application.
(4) The Appellate Authority may, if he is satisfied that the
appellant was prevented by sufficient cause from presenting the
appeal within the aforesaid period of three months or six
months, as the case may be, allow it to be presented within a
further period of one month.
(5) Every appeal under this section shall be in such form and
shall be verified in such manner as may be prescribed.
(6) No appeal shall be filed under sub-section (1), unless the
appellant has paid--
(a) in full, such part of the amount of tax, interest, fine, fee and
penalty arising from the impugned order, as is admitted by him;
and
(b) a sum equal to ten per cent. of the remaining amount of tax
in dispute arising from the said order, [subject to a maximum of
twenty-five crore rupees], in relation to which the appeal has
been filed.
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(7) Where the appellant has paid the amount under sub-section
(6), the recovery proceedings for the balance amount shall be
deemed to be stayed.
(8) The Appellate Authority shall give an opportunity to the
appellant of being heard.
(9) The Appellate Authority may, if sufficient cause is shown at
any stage of hearing of an appeal, grant time to the parties or any
of them and adjourn the hearing of the appeal for reasons to be
recorded in writing:
Provided that no such adjournment shall be granted more than
three times to a party during hearing of the appeal.
(10) The Appellate Authority may, at the time of hearing of an
appeal, allow an appellant to add any ground of appeal not
specified in the grounds of appeal, if it is satisfied that the
omission of that ground from the grounds of appeal was not
wilful or unreasonable.
(11) The Appellate Authority shall, after making such further
inquiry as may be necessary, pass such order, as it thinks just and
proper, confirming, modifying or annulling the decision or order
appealed against but shall not refer the case back to the
adjudicating authority that passed the said decision or order:
Provided that an order enhancing any fee or penalty or fine in
lieu of confiscation or confiscating goods of greater value or
reducing the amount of refund or input tax credit shall not be
passed unless the appellant has been given a reasonable
opportunity of showing cause against the proposed order:
Provided further that where the Appellate Authority is of the
opinion that any tax has not been paid or short-paid or
erroneously refunded, or where input tax credit has been
wrongly availed or utilised, no order requiring the appellant to
pay such tax or input tax credit shall be passed unless the
appellant is given notice to show cause against the proposed
order and the order is passed within the time limit specified
under section 73 or section 74.
(12) The order of the Appellate Authority disposing of the
appeal shall be in writing and shall state the points for
determination, the decision thereon and the reasons for such
decision.
(13) The Appellate Authority shall, where it is possible to do so,
hear and decide every appeal within a period of one year from
the date on which it is filed: Provided that where the issuance of
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order is stayed by an order of a court or Tribunal, the period of
such stay shall be excluded in computing the period of one year.
(14) On disposal of the appeal, the Appellate Authority shall
communicate the order passed by it to the appellant, respondent
and to the adjudicating authority.
(15) A copy of the order passed by the Appellate Authority shall
also be sent to the jurisdictional Commissioner or the authority
designated by him in this behalf and the jurisdictional
Commissioner of State tax or Commissioner of Union Territory
Tax or an authority designated by him in this behalf.
(16) Every order passed under this section shall, subject to the
provisions of section 108 or section 113 or section 117 or section
118 be final and binding on the parties."
9. Mr. Adik learned counsel on behalf of the Respondent Department has
fairly submitted that the Respondent Department would issue a show-cause notice
to the Petitioner within 2 weeks of receipt of this order, and adjudication
proceedings in respect of the impugned intimation would be carried out by the
Department. Considering the aforesaid submission, and our view that the
Petitioner needs to avail of an alternate remedy under Section 107 of the CGST
Act by filing an appeal before the Appellate authorities, we do not find any reason
to interfere in these proceedings under Article 226 of the Constitution of India. We
therefore deem it appropriate to pass the following order which would meet the
ends of justice: -
ORDER
i. Respondents to issue a show-cause notice to the Petitioner in respect of the demand sought to be raised by way of impugned intimation within a period of 2 weeks from the date this order is made available to the Respondents by the Petitioner.
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iv. Respondents to pass a reasoned and speaking order post the personal hearing as expeditiously as possible and preferably within a period of 3 months from the date this order is made available to the Respondents. v. All rights and contentions of the parties are expressly kept open. vi. Writ Petition is disposed of in the above terms. No costs.
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