AI Drafter 
TaxTMI 
TaxTMI 
2024 (1) TMI 1208
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....E FOR THE RESPONDENTS : BY SHRI ANIKET NAIK, DY. ADVOCATE GENERAL ORDER Heard finally with the consent of both the parties. This order shall govern disposal of both the writ petitions viz., W.P. No. 8123/2023 and W.P. No. 8125/2023. Regard being had to the similitude of the controversy involved in the aforesaid petitions, they have been heard analogously and disposed of by this singular order 2. For the sake of convenience, facts of W.P. No. 8123/2023 are taken. 3. The brief facts of the case are that:- (I) The instant Writ Petition is being filed under Article 226 of the Constitution of India, 1950 challenging the adjudication order in form GST DRC-07 having reference no. ZD230722004961P dated 15.07.2022 passed by the ....
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....son of fraud or any willful misstatement or suppression of facts (9) The proper officer shall, after considering the representation, if any, made by the person chargeable with tax, determine the amount of tax, interest and penalty due from such person and issue an order." (IV) An examination of the above shows that at the foremost, as per the sub- section (9) of Section 74 of the CGST Act/MPGST Act, the representation made by your Petitioner vide its reply dated 13.05.2022 was not at all considered by the Adjudicating authority before passing the impugned order under dispute. (V) Further, Section 75(4) of the CGST Act/MPGST Act provides that an opportunity of hearing shall be provided to the Assessee where an adverse order is to be pa....
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....ding opportunity of hearing is a mandatory requirement. The said requirement needs to be fulfilled in twin situations :- (I) When a specific request is received in writing from a person chargeable with tax or where any adverse decision is contemplated against such person. Learned counsel for the petitioners submits that the use of word 'or' is very important in this statutory provision. Admittedly, in the present cases, the adverse decision was contemplated on said contemplation is translated into reality, when tax was levied on the petitioners. In that event whether or not the petitioners specifically opted/demanded for a personal hearing, a personal hearing ought to have been provided. In absence thereof, the principles of natural just....
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....being heard if he so desires before final order is passed on his appeal. That requirement according to us cannot be read impliedly as an implicit condition in the third proviso to sub-section (1) of Section 4-M. But it need not be impressed that when the Appellate authority has been vested with the discretion to dispense with such deposit unconditionally or on conditions, then it has to apply its mind on that question like a quasi- judicial authority taking into consideration all the facts and circumstances of the case including the undue hardship which has been pointed out on behalf of the appellant. In that proviso the two expressions 'opinion' and 'descretion' both have been used. In view of the settled position that whenever a statutory....
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....consequences. (See Nelson Motis Vs. Union of India (1992) 4 SCC 711). 10. The language employed in sub-section 4 of Section 75 of the Act leaves no room for any doubt that the word 'or' is used by the law makers for a specific purpose. Although, in the first portion of the statute, i.e. sub8 section 4 of Section 75 of the Act, the statute talks about a specific request, the portion after the word 'or' makes it clear like cloudless sky that opportunity of hearing is required to be given, even in those cases where no such request is made but adverse decision is contemplated against such person. We find support in our view by the Division Bench judgment of Allahabad High Court in M/s. BL Pahariya Medical Store (supra). 11. The ancillary ....