TaxTMI 
TaxTMI 
2025 (7) TMI 1866
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....s of the case are as follows: 3. An intimation in Form GST DRC-01A was issued by the Proper Officer to the assessee/appellant detailing discrepancies for the tax period April 1, 2019 to March 31, 2020. The same was followed by a Show Cause Notice under Section 73(1) of the said Act dated May 10, 2024. In the said Show Cause Notice, the date of personal hearing was scheduled on June 3, 2024 whereas the date for filing reply to the Show Cause Notice was mentioned as June 10, 2024. 4. The appellant filed a written representation/reply on June 10, 2024, specifically seeking therein a personal hearing. 5. However, by an ex-parte assessment order dated August 12, 2024, the liability of the appellant was fixed at Rs. 17,79,242/-. The Proper Officer was of the opinion that an opportunity of hearing had already been given to the appellant in the Show Cause Notice. 6. The order was uploaded on the self-same date, that is, on August 12, 2024 under the tab "View Additional Notices/Orders" (for short, "the Additional Tab") on the GST Portal and the not under the "View Notices and Orders" tab (in brief, "the Normal Tab"). 7. The appellant filed an appeal under Section 107 of the W....
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.... (Gujarat). 12. Learned counsel for the appellant further argues that by the Show Cause Notice dated May 10, 2024, the respondent-Authorities fixed the date of personal hearing on June 3, 2024 whereas the date for submission of reply to the show cause was fixed on June 10, 2024, on which date the same was actually filed. It is contended the in order to afford a proper opportunity of personal hearing, the date of filing the reply to the show cause, on the basis of which such personal hearing is to be given, has to precede the date of hearing. In the present case, however, the cart was put before the horse by fixing the date of hearing on June 3, 2024, that is, seven days prior to the date of filing the reply, that is, June 10, 2024. The said irregularity vitiates the entire assessment as a whole. 13. In support of such contention, learned counsel cites M/s. Ans Trading Company v. Deputy Commissioner State Tax and another, reported at 2024:AHC:182815-DB, in the Hon'ble High Court at Allahabad, Mahaveer Trading Company v. Deputy Commissioner, State Tax, reported at (2024) 163 taxmann.com 515 (Allahabad), Mahindra & Mahindra ltd. v. Union of India, reported at [2024] 162 taxmann.....
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....7 (Madras), St. Xaviers College Calcutta Alumni Association v. Dy Commissioner of Revenue CGST and Ors. in WPO 559 of 2024 (High Court at Calcutta) and Sukumar Kundu v. Union of India & Ors. in WPA 12124 of 2024 (High Court at Calcutta). 18. Learned counsel also cites State of U.P. v. Mohammad Nooh, reported at AIR 1958 SC 86, where it was held that if an inferior court or Tribunal acts wholly without jurisdiction or patently in excess of jurisdiction, the superior court may exercise its power to issue a writ of certiorari even when an appeal to another Tribunal was available and recourse was not had to it, or if such Tribunal merely confirmed what ex facie was a nullity. 19. Learned counsel appearing for the respondent-Authorities contends that the learned Single Judge was perfectly justified in passing the impugned order by adverting to all relevant aspects. 20. It is argued that nothing prevented the appellant from appearing on June 3, 2024 before the Proper Officer for the purpose of personal hearing. Sufficient time was given to the appellant to do so, since the notice was issued on May 10, 2024. Since the appellant deliberately chose to skip such hearing, it cannot n....
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.... the notice under Section 73 (1) was issued in the present case. Thus, the judgments cited on such count by the appellant are not germane for the present consideration. 29. Upon hearing learned counsel for the parties, it transpires that several issues have been raised in the matter, which are dealt with below: Delay 30. There are two sub-issues involved under the question as to whether the delay occasioned in preferring the appeal before the Appellate Authority could be condoned. The first component is whether the Appellate Authority and/or the writ court had power to so condone and secondly, whether, on facts of the case, the same ought to have been condoned. 31. In S.K. Chakraborty (supra)2, the Co-ordinate Bench of this Court categorically observed that the timelines stipulated in Section 107(4) of the WBGST Act are not mandatory and the provisions of the Limitation Act are applicable. 32. The mere fact that an order of stay has been passed in respect of the said judgment does not take away the value of the same as a precedent. The operation of the order between the parties therein has been stayed, but the ratio therein is binding on co-ordinate Benches as per th....
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....lar timeline stipulated in the proviso to Section 7(2) of the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as "the 1997 Act"), another State legislation of the State of West Bengal. 40. Sub-sections (1) and (2) of Section 7 of the 1997 Act stipulate a timeline for making the deposits as contemplated therein. As per the proviso to sub-section (2) of Section 7, extension in respect of such deposit can be granted only once and the period of extension shall not exceed two months. Sub-section (3) of Section 7 of the said Act provides that if the defendant in an eviction suit under the said Act fails to deposit within the time or the extended time as stipulated therein above, the Controller under the said Act shall order the defence of the defendant to be struck out. 41. Thus, in a similar scenario, where a particular outer limit of extension of time has been provided, the 1997 Act makes such outer time-limit mandatory by using the expressions "only once" and "shall not exceed two months". Coupled with the following sub-section (3), the effect of the timeline is that in case of violation of the same, no such deposit can be permitted at all. 42. In this regard ....
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.... the Normal Tab in respect of viewing notices and orders appears second from the top in the list of tabs appearing on the said portal whereas the Additional Tab is placed seventh from the top. Thus, there is every chance that an assessee would miss out the seventh tab and would only click the Normal Tab, since the latter is captioned comprehensively as "View Notices and/or Orders", after viewing which no necessity might be felt at all to look for any other tab. 50. On a more fundamental premise, there is no explanation furnished in the GST Portal itself as to which notices and orders would come under the Normal Tab and which would come under the Additional Tab. 51. In the present case, the notice under Section 73(1) was, for all practical purposes, the first notice issued in connection with the assessment to the appellant/assessee. Thus, the term "additional" did not apply at all. If there was a question of multiple notices being issued at that point of time, or of previous notices having been issued, there still could have been a justification for uploading the notice under Section 73(1) under the Additional Tab. In the present case, however, since the said notice was the fi....
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.... in the present case, sufficient grounds have been made out by the appellant for condonation of the delay in preferring the appeal before the Appellate Authority after about three months and twenty days from the expiry of the four months' outer limit as provided in the statute. Natural Justice 58. It is well-settled that the strict rule of interpretation is applied in respect of taxing and penal statutes. Since the relevant provisions of the WBGST Act are penal in nature and the WBGST Act itself is a taxing statute, the strict rule of interpretation has to be applied in construing its provisions. Going by the said rule, where some action is provided for in the statute to be done in a particular mode and manner, it either has to be done exactly in accordance therewith or not at all. 59. The scheme of the WBGST Act is required to be looked into in this context. 60. Section 74 of the said Act applies in cases where tax is not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilised by reason of fraud, wilful misstatement or suppression of facts. On the other hand, Section 73 contains similar provisions in respect of cases where such fraud,....
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....nt/assessee categorically sought an opportunity of personal hearing and an adverse decision was contemplated against the appellant. The Proper Officer turned down such request of the appellant on the premise that an opportunity of hearing had already been given. However, the date of such hearing was fixed on June 3, 2024, that is, prior to the date of filing the representation which, as rightly argued by the appellant, is a typical case of the proverbial "putting the cart before the horse". If a statute provides both a right of representation and a personal hearing, it is self-evident that such hearing has to be given on the basis of the said written representation. A hearing prior to the representation is an absurd proposition, since such a hearing would be illusory. It is all the more absurd if taken to its logical conclusion. In a case where a hearing is given prior to the representation, two opportunities of hearing have to be given, one without a representation and another on the representation. 67. In the present case, even if we ignore the written request in writing for a personal hearing made in the representation of the appellant itself, since the Proper Officer contemp....
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....h an order has to be passed or an action has to be taken by an authority, it is either to be done in that manner or not at all. In the present case, as discussed above, the timelines, even on a strict interpretation, are not mandatory whereas the provision for giving an opportunity of hearing on the representation of the assessee is so. Such vital aspect was totally overlooked in the impugned order. 76. Secondly, while considering the starting point of limitation, the learned Single Judge proceeded on the premise that due communication of the notice was effected on the appellant, without taking into account the glitches as pointed out above in uploading the notice on the Additional Tab instead of the Normal Tab. 77. That apart, while observing that proper explanation of the delay was not given, the learned Single Judge took into account the explanation only for one of the partners who had suffered surgery while overlooking the ground taken in respect of the other active partner of the appellant-Firm who was extremely busy for justified reasons, looking after his seriously ailing mother at the relevant point of time. 78. The other aspect which was overlooked in the impugned....