M/S Sahaj Construction vs. Union Of INDIA And Ors
Original PDF →No AI summary yet for this judgment.
Cause title — parties, addresses and appearances
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE S.SUNIL DUTT YADAV)
The present appeal has been filed challenging the order of the learned Single Judge dated 01.10.2024 passed in W.P.No.200893/2024 which came to be dismissed.
Writ Petition was filed by the appellant/assessee calling in question the correctness of the Notification No.09/2023 dated 31.03.2023. Appellant had also challenged the validity of the show cause notice dated 29.09.2023 and summary show cause notice dated 30.09.2023 and consequent order dated 21.12.2023 and summary order dated 21.12.2023 after adjudication at Annexures-C and C1. Various contentions were raised before the learned Single Judge including as regards the validity of the notification extending time to complete the assessment proceedings. Learned Single Judge, by a detailed order while rejecting such contentions had declined to uphold the contentions of the appellant insofar NC: 2025:KHC-K:355-DB as Notification No.09/2023 dated 31.03.2023. While dismissing the petition, the assessee was permitted to file an appeal and time was granted to file appeal without reference to limitation in light of the proceedings before this Court.
At the time of hearing of the present appeal, the learned counsel for the appellant submits that the appellant would give up his contention regarding validity of Notification No.09/2023 and submits that the learned Single Judge despite turning down his contention regarding validity of the Notification No.9/2023 ought to have recorded a finding on other contentions raised including that during the process of adjudication, no opportunity as contemplated under Section 75(4) of the Central Goods and Sales Tax Act, 2017 (for short, ‘CGST Act,) was afforded despite the authority recording an adverse finding against the appellant. Attention is drawn to the specific pleading at paragraph Nos.23 to 25 of the Writ Petition. NC: 2025:KHC-K:355-DB
Perused the impugned order at Annexures-C. It is noticed that the finding of the authority is that the appellant was liable to pay tax at the rate of 18% per annum and not 12% as asserted. It is submitted that when such finding is being recorded as noticed from the conclusion of the order of adjudication, the procedure contemplated under Section 75(4) of the CGST Act ought to have been afforded. It is also noticed that though the assessee was afforded an opportunity to show cause and despite no reply having been filed, however, procedure contemplated under Section 75(4) of the CGST Act requires to be followed irrespective of whether reply is filed or not. The stand alone provision of Section 75(4) of the CGST Act requires that before any adverse order is being passed, opportunity of hearing ought to have been afforded.
Section 75(4) of the CGST Act reads as follows: “Section 75. General Provisions relating to determination of tax.- (4) An opportunity of hearing shall be granted where a request is received in writing from the NC: 2025:KHC-K:355-DB person chargeable with tax or penalty, or where any adverse decision is contemplated against such person.”
From the reading of said provision while the assessee may be granted an opportunity where a request is made in writing, the provision also stipulates that such opportunity is to be extended where any adverse decision is contemplated against such person. It must be noticed that in case of contingencies as contemplated under Section 75(4) of the CGST Act wherein adverse decision is contemplated prior to concluding the proceedings, an opportunity of hearing ought to have been afforded. There is no evidence of such opportunity having been afforded.
In the light of contentions raised and noticed regarding violation of Section 75(4) of the CGST Act, the orders at Annexures-C and C1 are set aside and the matter is remitted to the stage of furnishing of reply to the show cause notice. All contentions are kept open. NC: 2025:KHC-K:355-DB
In light of peculiar facts and circumstances of this case, though the appellant has given up the claim insofar as validity of Notification No.09/2023, the order of the learned Single Judge is modified insofar as operative directions are concerned and in terms of the observation made above. Accordingly, the appeal is disposed of.
The appellant to make out his reply to the show cause notice within a period of four weeks from the date of release of certified copy of this judgment. (S.SUNIL DUTT YADAV) JUDGE (RAJESH RAI K) JUDGE VNR List No.: 1 Sl No.: 25 CT: PS
Reproduced from the public record of the Karnataka High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.