TaxTMI 
TaxTMI 
TaxTMI 
2024 (4) TMI 1031
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....for a contemplated tax, not paid or short paid on 29.09.2023 (Annexure-P/8). According to the appellant, the last date for reply was fixed on 30.10.2023 and the appellant sought for extension of such time by Annexure-P/10 on 11.10.2023, i.e. reply within the prescribed timeline. 3. The submission of the appellant is that before the filing of the reply since date of personal hearing was fixed, under those circumstances, the extension of time was sought for. However, eventually, the order dated 29.12.2023 was passed. It is contended on behalf of the appellant that in a manner of this nature, before imposition of liability, sub-section 9 of Section 73 contemplates that the officer shall after considering the representation shall issue the order and Section 75 (4) mandates that opportunity of hearing shall be granted if the sufficient cause is shown and where any adverse decision is contemplated against the assessee. It is submitted that adverse order has been passed without giving any opportunity of hearing to the appellant, therefore, the rules of natural justice were defeated. The counsel placed his reliance on the decision of the Supreme Court in the matter of Kalpraj Dharamshi an....
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....ny reason other than fraud or any wilful-misstatement or suppression of facts. 73.(1) Where it appears to the proper officer that any tax has not been paid or short paid or erroneously refunded, or where input tax credit has been wrongly availed or utilised for any reason, other than the reason of fraud or any wilful-misstatement or suppression of facts to evade tax, he shall serve notice on the person chargeable with tax which has not been so paid or which has been so short paid or to whom the refund has erroneously been made, or who has wrongly availed or utilised input tax credit, requiring him to show cause as to why he should not pay the amount specified in the notice along with interest payable thereon under section 50 and a penalty leviable under the provisions of this Act or the rules made thereunder. 8. Reading of this Section would show that the revenue would be within its power to issue the notice, that when tax has not been paid or short paid or erroneously refunded or some input tax credit has been wrongly availed or utilized other than a reason of fraud or willful misstatement, the notice would be under Section 73 sub-section (10) of CGST Act, as the limitation h....
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....verse decision is contemplated against such person. (5) The proper officer shall, if sufficient cause is shown by the person chargeable with tax, grant time to the said person and adjourn the hearing for reasons to be recorded in writing: Provided that no such adjournment shall be granted for more than three times to a person during the proceedings. (6) xxx 12. The submission of the State/Revenue is that as per Section 75 sub-Section 4 of the CGST Act, the date of hearing was already given on 11.10.2023 and 25.10.2023, therefore, the mandate of Section 75 (4) stands complied. We are not in agreement to that submission as the opportunity of hearing when is contemplated under the statute, it has to be comprehensive and it cannot be short-circuited. The show cause notice reflects that the date of reply was given on 30.10.2023 and before the personal hearing date is given, it would be about a superfluous and would defeat the actual intent of the legislation of giving an opportunity of hearing. It is not expected that before the reply is filed, an assessee can be heard and thereafter the reply is filed. It is against the normal procedure and is against the normal practice of the....
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....ht to have notice of charges of misconduct, and (iii) the right to be heard in answer to these charges. 14. Oral hearing has its own eminence in the adjudication process and is recognized as an important aspect of adjudication not only in India but across several jurisdictions. The Supreme Court in Automotive Tyre Manufacturers Assn. v. Designated Authority, (2011) 2 SCC 258 : 2011 SCC OnLine SC 130 at page 296 83. The procedure prescribed in the 1995 Rules imposes a duty on the DA to afford to all the parties, who have filed objections and adduced evidence, a personal hearing before taking a final decision in the matter. Even written arguments are no substitute for an oral hearing. A personal hearing enables the authority concerned to watch the demeanour of the witnesses, etc. and also clear up his doubts during the course of the arguments. Moreover, it was also observed in Gullapalli [AIR 1959 SC 308] , if one person hears and other decides, then personal hearing becomes an empty formality. The Supreme Court in United States Jack R. GOLDBERG, Commissioner of Social Services of the City of New York vs. John KELLY et al. (23.03.1970 - USSC) : MANU/USSC/0168/1970 held that....