TaxTMI 
TaxTMI 
TaxTMI 
There are at least one thousand orders passed by various jurisdictional high courts all over India emphasizing again and again the importance of sub section 4 of section 75 which is reproduced for ready reference.
75 (4): 'An opportunity of hearing shall be granted where a request is received in writing from the person chargeable with tax or penalty, or where any adverse decision is contemplated against such person'.
However, High Courts insist on personal hearing in respect of all adverse orders against the taxpayer irrespective of the fact as to whether the taxpayer has made any such request or not. One of the High Court even went one step further that natural justice is a fundamental principle under any law and accordingly, even when the taxpayer has opted for no personal hearing, the tax officer is bound to provide such opportunity.
What the officers fail to understand is that in case the personal hearing is provided and the taxpayer does not appear, the case is won by the department whereas when no personal hearing is provided relying on Section 169 that communication is done in line with legal requirements, the case is won by the taxpayer.
To examine this concept further, let us quickly recapitulate section 169. Sub-section 1 of section 169 reads as '(1) Any decision, order, summons, notice or other communication under this Act or the rules made thereunder shall be served by any one of the following methods, namely:-
(a) |
| by giving or tendering it directly or by a messenger including a courier to the addressee or the taxable person or to his manager or authorised representative or an advocate or a tax practitioner holding authority to appear in the proceedings on behalf of the taxable person or to a person regularly employed by him in connection with the business, or to any adult member of family residing with the taxable person; or |
(b) |
| by registered post or speed post or courier with acknowledgement due, to the person for whom it is intended or his authorised representative, if any, at his last known place of business or residence; or |
(c) |
| by sending a communication to his e-mail address provided at the time of registration or as amended from time to time; or |
(d) |
| by making it available on the common portal; or |
(e) |
| by publication in a newspaper circulating in the locality in which the taxable person or the person to whom it is issued is last known to have resided, carried on business or personally worked for gain; or |
(f) |
| if none of the modes aforesaid is practicable, by affixing it in some conspicuous place at his last known place of business or residence and if such mode is not practicable for any reason, then by affixing a copy thereof on the notice board of the office of the concerned officer or authority who or which passed such decision or order or issued such summons or notice'. |
The officers all over India almost in all cases choose method d for two reasons. Reason one is that it takes the minimum time to post in the portal as compared to other modes and also it is a simple work to do so. Secondly, the tax officer is well aware of the fact that the chances of this uploading going unnoticed is much higher. This is exactly what the tax officer would like to have so as to pass an order in violation of Section 75 (4) by taking the plea that personal hearing was granted but the taxpayer did not exercise such option.
What is to be understood by all tax officials all over India is that a, b, c, d, e as well as f are only six options available and the legislature has given six different options instead of d alone only to ensure that communication is EFFECTIVE. So long as uploading SCN or PH Notice in portal is concerned, it only fulfills compliance of Section 169. Compliance of Section 169 does not give any power to any officer to violate section 75 (4). Section 75 (4) is much powerful than 169 as Section 169 is only a suggestion to do for sending SCN or notice or Orders whereas Section 75 (4) is mandatory and that is why all high courts come down heavily on tax officer by setting aside the orders when such orders are passed without adhering the principle of natural justice.
The Calcutta High Court on 23/02/2026 had an occasion to examine this issue in WPA 19924 of 2025 in the matter of Maya Store & Anr. Versus The Union of India & Ors. - 2026 (2) TMI 1328 - CALCUTTA HIGH COURT wherein the adjudication order dated 14/12/2023 was set aside and matter was remitted to proper officer for fresh adjudication. Let us see the story now.
S No | Issue | Fact |
1 | Period of dispute | 01/07/2017 to 31/03/2018 |
2 | Section invoked | 73 |
3 | Effective communication | Affidavit of respondent proves that the communication was not effective. |
4 | Section 75(4) | GROSS VIOLATION |
The vital observations of high court are noteworthy for all tax officers and hence they are furnished in the language of the high court itself.
7. In terms of the provisions of Section 75(4) of the said Act of 2017, if an order having adverse consequence is contemplated, grant of an opportunity of hearing is mandatory.
8. Since it has not been proved before this Court, to any decree of satisfaction, that the petitioners have been afforded an opportunity of hearing prior to the impugned decision being taken, therefore the said decision falls foul of the principles of natural justice as well as the provisions of Section 75(4) of the said Act of 2017 which grant statutory recognition to such principles.
9. On such ground alone, the adjudication order dated December 14, 2023 stands set aside. The matter is remitted to the file of the Proper Officer for fresh adjudication.
Let us conclude that all taxpayers as well as tax professionals may take advantage of the legal position that in all cases where there is violation of principles of natural justice due to non-adherence of Section 75 (4), the case is almost won in GSTAT. Kindly act swiftly in all applicable cases as we have time only up to 30/06/2026 in cases of orders passed by first appellate authority. In case adjudication order is passed in violation of 75 (4) during 01/04/2024 till date, make an attempt to file appeal before first appellate authority and in case the same is rejected on the ground of limitation, the case is almost won in GSTAT.
