2024 (1) TMI 807

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....in WPA 1866 of 2023 (Goutam Bhowmik-vs.-The State of West Bengal & Ors.) passed by the learned Single Judge. In the writ petition the appellant/petitioner has prayed for a writ in the nature of certiorari to quash the order dated 25.03.2021 under Section 73 of the WBGST/CGST Act, 2017 passed for the tax period/Financial Year appearing from April 2018- March 2019. The writ petition was dismissed by the learned Single Judge. Aggrieved with the aforesaid judgment and order of the learned Single Judge, the appellant/petitioner has filed the present appeal. 3. Learned Advocate for the appellant/petitioner submits that neither any show cause notice as contemplated under Section 73 was served upon the petitioner nor any opportunity of hearing was....

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....ner is a proprietorship concerned engaged in the trade of Timber and registered under the WBGST/CGST Act, 2017. He has filed its return regularly. A notice under Section 73(5) of the Act, 2017 dated 11.12.2020 was issued by the Assistant Commissioner of State Tax, Jalpaiguri Charge, for the financial year 2018-19, on the ground that there is some mismatch between FORM GSTR-7 and STR-3B for the financial year 2018-19. The aforesaid notice was followed by a show cause notice dated 15.01.2021 under Section 73 of the Act 2017. From bare perusal of the notice, it is evident that neither any date, time or place of hearing was fixed nor any personal hearing was intended to be afforded. Thereafter, the Assistant Commissioner of State Tax (GST) Jalp....

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....17, when the proper officer contemplated a decision against the petitioner/assessee, then it was mandatory for him to afford an opportunity of hearing. From the perusal of the show cause notice dated 15.01.2021, it is evident that the proper officer has declined to afford an opportunity of hearing to the petitioner inasmuch as it has not communicated any date, time and venue of hearing. 10. A Division Bench of the Allahabad High Court in Bharat Mint and Allied Chemicals-vs.- Commissioner of Commercial-tax, reported in (2022) 59 GSTL 394 (Allahabad), on similar set of facts, has held as under:- 7. In the table below the aforementioned lines, date, time and venue of personal hearing has not been mentioned. Section 75(4) of the Act, 2017 pr....

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....oper officer and in the event of violation the order passed by the proper officer cannot be sustained. Under the circumstances, the impugned order dated 25.03.2021 passed by the proper officer for the period April 2018 to March 2019 cannot be sustained and deserves to be quashed and the matter deserves to be remanded to the concerned Authority to pass an order afresh in accordance with law after affording reasonable opportunity of hearing to the petitioner/appellant. 12. So far as the objection raised by learned Advocate for the respondents with regard to the availability of statutory remedy of the appeal under Section 107 of the WBGST/CGST Act, 2017 is concerned, we find that once the order has been passed by the proper officer in complet....

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....aw. (vii) Where decision is an abuse of process of law. (viii) Where palpable injustice shall be caused to the petitioner, if he is forced to adopt remedies under the statute for enforcement of any fundamental rights guaranteed under the Constitution of India. (ix) Where a decision or policy decision has already been taken by the Government rendering the remedy of appeal to be an empty formality or futile attempt. (x) Where there is no factual dispute but merely a pure question of law or interpretation is involved. (xi) Where show cause notice has been issued with preconceived or premeditated or closed mind. 14. The above principles are supported by the law laid down by Hon'ble Supreme Court in the cases of Himmatlal Harilal ....

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....n of India (1998) 9 SCC 710; Isha Beebi Vs. Tax Recovery Officer (1976) 1 SCC 70 (para 5); Whirlpool Corporation Vs. Registrar of Trademarks (1998) 8 SCC 1; Guruvayur Devasworn Managing Committee Vs C.K. Rajan (2003) 7 SCC 546 (para 67, 68), Oryx Fisheries Pvt. Ltd. Vs. Union of India & Others (2010) 13 SCC 427 (Paras 27 to 38), Mangilal Vs. State of M.P. (1994) 4 SCC 564 (Para 6), Siemens Ltd. VS. State of Maharashtra (2006) 12 SCC 33 (para 9 & 11), Kaikhosrou (Chick) Kavasji Framji of Indian Inhabitant Vs. Union of India (2019) 20 SCC 705 (para 59) and judgments of this Court in Writ Tax No. 255 of 2012 (M/s Shree Bhawani Paper Mills Ltd. Vs. State Of U.P. and Another) decided on 10.09.2015, M/s. Rapti Commissions Agency Vs. Union of Indi....