TaxTMI 
TaxTMI 
2024 (7) TMI 1511
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....s. a) Issue a writ of prohibition, or any other writ, order or direction as this Hon'ble Court may deem fit and proper in preventing Respondent No.2 or functionaries working under its office from proceeding in excess or abuse of their jurisdiction in demanding the tax amount along with interest and penalty. b) Issue a writ of certiorari, or any other writ, order or direction as this Hon'ble Court may deem fit and proper, by quashing the order passed in Form GST DRC-07 vide No. ACCT (AUDIT-2)/Blr/GST/2023-24/1878 dated 30.03.2024 passed by the 3rd Respondent enclosed as Annexure-R demanding tax amount along with interest and penalty in as illegal and untenable in law, in the facts and circumstances of the case; c) Issue a writ of certiorari, or any other writ, order or direction as this Hon'ble Court may deem fit and proper, by quashing and setting aside the impugned Notification No.9/2023 dated 31.03.2023 issued by Respondent no.2 Annexure-S being ultra vires the Constitution of India and provisions of CGST Act, 2017. d) Issue a writ of mandamus, or such other writ, order or direction, as this Hon'ble Court may deem fit and proper, setting aside ....
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..... 3 scheduled a personal hearing on 27.02.2024. In response to the said letter for personal hearing, petitioner filed an adjournment letter on the 27.02.2024 requesting to file additional reply and to attend personal hearing and thereafter petitioner filed a detailed reply/objection statement to show cause notice once again by letter dated 12.03.2024 along with supporting documents along with the letter dated 14.03.2024, the petitioner specifically requested for personal hearing before disposing of the matter. 5. It is the case of petitioner that without even considering the documents submitted in a proper perspective and without affording even a personal hearing, respondent No. 3 herein proceeded to issue an order in Form GST DRC-07 vide No.ACCT (Audit-2)/Blr/GST/2023-24 on 30.03.2024 demanding a sum of Rs. 22,99,62,468/- towards tax, interest and penalty. The same was confirmed by the impugned order. The petitioner being aggrieved by the said impugned order is before this Court primarily contending that the order passed by respondent No. 3 is wholly arbitrary, illegal, unconstitutional and without jurisdiction for the reason that petitioner had filed his reply to GST ADT-01 an....
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....y the petitioner and fixed the date of hearing for filing the reply and hearing on the very same day, i.e., on 27.02.2024. Therefore, learned counsel for the petitioner contends that the provisions prescribed under the CGST Act mandates that respondent No. 3 provides sufficient opportunity for filing reply and sufficient opportunity for personal hearing before passing any final determination with regard to tax, interest and penalty imposition. 8. It is also contended by learned counsel for the petitioner that even if it is assumed that no personal hearing is provided, respondent No. 3 is duty bound under law to afford an opportunity of being heard before passing any adverse order, which would affect the interest of the petitioner. Therefore, he contends that the objection raised by the respondents with regard to non maintainability of the writ petition would not come in the way of this Court entertaining the writ petition for the reason that respondent No. 3 has infringed the fundamental rights of the petitioner and has violated the principles of natural justice by not providing suitable opportunity of filing reply and fair hearing to the petitioner as is contemplated under the ....
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....he petitioner for personal hearing was considered and a date was fixed for filing of reply and personal hearing, despite which the same was not attended to and the opportunity was not utilized and the request of the petitioner as provided in Annexure-P dated 12.03.2024 for providing an opportunity of being heard was considered and as the petitioner had sent a letter dated 27.02.2024 to the respondent No. 3 stating that he would submit his response positively by 01.03.2024, the same was provided and it is further contended by learned Additional Advocate General that after issuance of notice, since there was no reply filed, it was treated as there is no objections towards the liability when DRC-01A was confirmed in Form GST DRC-01 and since no objections and explanation was given by the taxpayer, though certain documents were submitted, they cannot be held as to be replied nor explanation for the observations issued in Form DRC-01. It is also contended that respondent No. 3 provided a personal hearing and thereafter followed by the reminder to file reply and also to make use of personal hearing on 27.02.2024. Despite providing these opportunities for filing reply and personal hearing....
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....Pvt. Ltd., vs. State Tax Officer, (2023) 13 Centax 163 (S.C.). (iv) Falcon Enterprises vs. State of Gujarat, 2021 (49) G.S.T.L. 337 (S.C.). (v) State of Uttar Pradesh and Others vs. Kay Pan Fragrance Private Limited, (2020) 5 SCC 811. (vi) The Chairman, Board of Mining Examination and Chief Inspector of Mines and Another vs. Ramjee, AIR 1977 SC 965. (vii) United Bank of India vs. Satyawati Tondon and others, (2010) 8 SCC 110. (viii) State of Maharastra and others vs. Greatship (India) Limited, 2022 SCC OnLine 1262. (ix) A Judgment of this Court in the case of M/s. AKR Constructions Limited vs. The Commissioner Central Goods and Services Tax and Central Excise and others, WP. No. 100278/2024(T-RES), 25.01.2024. 14. Having heard learned counsel for both parties fundamentally, it is well laid down principle of law that when the revenue issues a show cause notice, opportunity has to be given to the taxpayer to submit reply and thereafter an opportunity of hearing is also contemplated under the Act, 2017. In the present case on hand, it is the case of petitioner's that after issuance of show cause notice, he has filed the reply an....
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....to be mandatory in nature to the respondent authorities to act in the manner as provided under the statute. In the present case on hand, it is the case of respondents that despite providing suitable opportunity, the petitioner/taxpayer has not filed reply in Part-B and he has not filed objections with explanation instead the taxpayer has submitted several documents. He has not filed the reply on time despite granting sufficient opportunity and reminders requesting and insisting the petitioner/taxpayer to file his reply on or before the relevant date stipulated therein and subsequently adhering to the request, provided an opportunity of personal hearing on 22.01.2024 and thereafter again a further reminder to file the reply for DRC-01 and to make use of the opportunity of personal hearing which was scheduled on 27.02.2024. However, the taxpayer having nothing utilized these many opportunities provided by respondent No. 3, it would be farfetched to say that the revenue has to wait till the petitioner/taxpayer files his reply and attends the personal hearing and does not bother for the opportunity granted despite extension being provided. This clearly goes to show that there is ulteri....
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....taka), wherein it is held at paragraph Nos.5 and 6 as under: "5. It is noticed that the order passed is an ex-parte order without the say of the petitioner. Though the electronic mode of service may be sufficient, however, in the peculiar facts of this case, taking note of the substantive rights involved, it would serve the interest of justice by remanding the matter and granting another opportunity to the petitioner to participate and make out his reply to the show cause notice dated 27.09.20023. If the objective of Section 75 (4) of the Act is kept in mind, requirement is of providing an opportunity wherever adverse order is sought to be passed. 6. Taking note of such legal mandate, it would be appropriate to permit the petitioner to participate in the adjudication process and accordingly, the order at Annexure-A is set aside. Consequential recovery proceedings initiated by the 2nd respondent at Annexure-B also stands set aside. The matter is restored to the stage of show cause notice. Petitioner is permitted to make out his reply to the show cause notice within a period of four weeks from receipt of certified copy of the order and question of raising any ground....
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....shi and another (supra) that where the principles of natural justice has not been followed, the litigant would be entitled to invoke the jurisdiction of High Court under Article 226 of the Constitution of India. It has also dealt with the provisions of Section 75 (4) and (5) at paragraph No.12, which reads as under : "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 case notice reflects that the date of reply was given on 30.102.023 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 parties that personal hearing is prepon....
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....f hearing, non-providing of opportunity of hearing, as an excuse to come before this Court to exercise discretionary jurisdiction under Article 226 of the Constitution of India. 25. Learned AAG appearing for respondent No. 3-Revenue has relied on the Judgment in the case of Assistant Commissioner of State Tax vs. Commercial Steel Ltd., 2021 (52) G.S.T.L. 385 (S.C.), where the Hon'ble Apex Court after reciting the contentions of the parties refrained from interfering on the ground that there was statutory remedy of provision under Section 107 of the Act, 2017 provided and when there is alternative efficacious remedy though which is not a absolute bar to the maintainability of the writ petition. The writ petition should be entertained only in exceptional circumstances. It is relevant to note here the paragraph No.11, wherein the Hon'ble Apex Court has provided the relevant exceptional circumstances, which read as under : "11. The respondent had a statutory remedy under Section 107. Instead of availing of the remedy, the respondent instituted a petition under Section 226. The existence of an alternate remedy is not an absolute bar to the maintainability of a writ petition ....
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....d this remedy to challenge the order passed by the respondents/authorities. But, in the present case on hand, the petitioner has filed the reply and the same having not been considered, while passing the impugned order and an opportunity of personal hearing having not been provided, in my humble opinion would be a breach of the fundamental rights of the petitioner and also it would fall within the category of violation of principles of natural justice. As stated by me earlier, the CGST Act contemplates under Section 73 (9) of the Act that the proper officer shall, after considering the representation, if any, made by person chargeable with tax, determine the amount of tax, interest or penalty equivalent to 10% of tax or Rs. 10,000/-, whichever is higher due from such person, and issue an order. 29. Further, the next clause 10 reads that the proper officer shall issue the order under sub-Section 9 within three years from the due date for furnishing of annual return of financial year, to which tax not paid or short paid or input tax credit wrongly availed or utilized, relates to or within three years from the date of erroneous refund and subsequently, to top it all, Section 75 (4)....
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....is very appealing to the effect that despite sufficient opportunities being given for filing reply and response and non-utilization of opportunity of personal hearing provided, and there being alternative remedy, I am afraid the same cannot be accepted in the present facts and circumstances of the case, as the revenue could have accepted the response, adverted to it in the impugned order and provided an opportunity of hearing, which is a mandatory requirement as contemplated under Section 75 (4) of the CGST Act and thereafter could have passed the suitable order either way, which has not been done in the present case. 33. Under the circumstances the petition deserves to be allowed. However, the same will have to be with caution and costs imposed on the petitioner for non utilization of the opportunities and non filing of the reply within time and as promised in the letter dated 27.02.2024, wherein the petitioner had said that he would file his reply on response by 1.03.2024, positively but did not file the same and also not utilized the opportunity of personal hearing provided by the revenue. Under the circumstances, I pass the following: ORDER i. The impugned order ....