TaxTMI 
TaxTMI 
2025 (8) TMI 853
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.... 227 of the Constitution of India, the petitioner has challenged the legality of the order dated 10.08.2024 passed in Form GST DRC-07 as well as show cause notice dated 29.05.2024 issued under Section 74 of the Gujarat Goods and Services Tax Act, 2017 (For Short "the GST Act") in Form GST DRC-01. 5. The brief facts of the case are as under:- 5.1. The petitioner a Private Limited Company is engaged in the business of constructing and development of infrastructures. A show cause notice dated 08.01.2022 was issued under Section 73 of the Goods and Services Tax Act, 2017 in Form GST DRC-01, which was dropped by the respondent. Thereafter respondent no. 4 - Sales Tax Officer, Ghatak 24, (Gan) Range-7, Division-3, Gujarat again initiated proceedings under Section 61 of the GST Act read with Rule 99 of the Central/State Goods and Services Rules, 2017 (For Short "the GST Rules") by issuing an intimation in Form GST DRC-01A dated 10.05.2024 proposing the demand amounting to Rs. 23,01,066. Thereafter, the impugned notice dated 29.05.2024 was issued proposing the demand amounting to Rs. 32,99,801/- 5.2. The petitioner submitted reply dated 06.06.2024 filed before the respondent no. 4....
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....jacket formula and the same are amenable to being moulded depending upon the facts peculiar to each case and at the same time the requirement of giving reasonable opportunity of being heard before making any order would have adverse consequence on the parties resulting into breach of principles of natural justice. It was, therefore, submitted that fair opportunity ought to have been given to the petitioner so as to exclude the risk of arbitrariness and allegation of whimsical approach in the process of decision making. 6.2. Learned advocate Dr. Malkiat Singh invited attention of the Court to the observations made in paragraph '22' of the aforesaid judgment to submit that after relying upon the decision of the Hon'ble Bombay High Court in the case of BA Continuum India Pvt. Ltd. v. Union of India and Others rendered in W.P (L) No. 3264/2020 decided on 08.03.2021, the Hon'ble Delhi High Court held that the expression personal hearing or the opportunity of being heard is not a mere empty formality. The provisions of Sections 75(4) and 75(5) of the GST Act is required to be adhered to and cannot be substituted to telephonic conversation. It was, therefore, submitted that had the pet....
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....ed since the ITC was availed from such purchases wherein the sellers dealers were actually cancelled and it was the case of the Respondents that only bills were issued without any actual supply of goods by such sellers. Pursuant to such notice a reply dated 17.05.2024 was filed by the petitioners seeking for more time. Considering such reply an additional time of 10 days was granted after which a notice in DRC-01 was issued on 29.05.2024. iii. It is submitted that pursuant to such notice the petitioners voluntarily on 03.06.2024 made a payment of Rs. 2,72,885/- in Form DRC-03 of the total 11,62,171 alleged in the impugned notice. For the remaining amount the petitioners filed a reply stating that ITC claimed was valid and therefore, no addition was to be made. However, the petitioners did not file any documents substantiate the movement of goods for it is purchases from such cancelled dealers. iv. Further, on 31.07.2024 the authorized representative of the petitioners further remained physically present before the answering respondent herein to make it submissions. The copy of the office note dated 31.07.2024 evidencing the same is attached herewith and marked as ....
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.... from time to time under the provisions of the Act intimating the petitioners of the possible addition and further granting time to file a reply, Section 75(4) of the Act should be considered as complied with. x. It is submitted that such general provisions relating to determination of Tax, cannot override the specific provision of the Act in the said regard. 7. It is stated that only purpose of such section is to ensure that there is sufficient opportunity given to an Assessee and the Assessee is put to notice before the adverse order is passed so as to enable him to rely as it deems fit. It is, therefore, submitted that in letter and spirit the said provisions have been duly complied with. Further, the petitioner has an alternative remedy to file an appeal as per the provisions of Section 107 and therefore also the said petition may not be entertained." 7.1. Referring to the above submissions, it was submitted that as sufficient opportunity of hearing is granted to the petitioner as it is duly recorded in the order sheet by the respondent, as explained in the aforesaid averments made in the affidavit-in-reply, no interference may be made by this Court while e....
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....ioner before passing the impugned order raising demand which is in violation of the provisions of Section 75(4) of the GST Act. We are in complete agreement with the observation made by the Delhi High Court in the case of M/s. Jupiter Exports (supra) wherein it is held as under:- "22. Moreover, the telephonic conversations for a brief period cannot, in our opinion, be a substitute for a personal hearing or for that matter, be construed as a hearing at all. The opportunity of hearing, which the Officer is statutorily required to give to the person against whom an adverse decision is contemplated, is not an empty formality, and is a well-recognised principle of audi alteram partem, which has rightly been incorporated in Section 75(3) and 75(4) of the CGST Act. The principle being that no one should be condemned without the opportunity of hearing. 23. The Hon'ble High Court of Bombay had an occasion to decide a case in somewhat similar circumstances. The petitioner in that case had alleged that the Show Cause Notice was adjudicated without affording any opportunity of personal hearing. The respondent had relied upon the trade notice issued by the department pursu....