M/S Benq Catering And Allied Services Private Limited vs. Assistant Commissioner

THE HON’BLE SRI JUSTICE JOYMALYA BAGCHI AND THE HON’BLE SRI JUSTICE K.SURESH REDDY WRIT PETITION No.11178 of 2021 (Taken up through video conferencing) ORDER: (Per Hon’ble Sri Justice Joymalya Bagchi) Petitioner-assessee has assailed the assessment order dated 25.01.2021 passed by the 1st respondent whereby CGST amount of Rs.10,16,748/- on taxable supply declared in GSTR-I for the year 2019-20 was confirmed due to failure to file GSTR-3B inclusive of penalty and interest thereon. Learned counsel appearing for the petitioner submits upon a revised show-cause notice being issued upon his client, no opportunity of hearing was given to the petitioner-Company in terms of Section 75(4) of the Central Goods and Services Tax Act, 2017 (for short, ‘the CGST Act’). Accordingly, the impugned order suffers from breach of principles of natural justice. He relies on a decision of the Gujarat High Court in Alkem Laboratories Ltd. Vs. Union of India1 in support of such submission. Learned Government Pleader for Commercial Taxes submit opportunity of hearing had been extended to the petitioner- assessee upon issuance of the initial show-cause notice. Subsequently, the petitioner had not insisted upon a personal hearing when the revised show-cause was issued. This is, however, disputed by learned counsel appearing for the petitioner-assessee. 1 MANU/GJ/0223/2021 2 We have considered the materials on record including the objection filed by the petitioner-assessee. There is a clear demand for personal hearing. Section 75(4) of the CGST Act reads as follows: “(4) An opportunity of hearing shall be granted where a request is received in writing from the person chargeable with tax or penalty or where any adverse decision is contemplated against such person.” A plain reading of the said provision would leave no doubt in one’s mind that it is incumbent upon the assessing authority to give an opportunity of personal hearing to the assessee when a request in that regard is received in writing from it or where any adverse decision is contemplated against the assessee. In the present case, a clear and unequivocal prayer for personal hearing had been made by the petitioner-assessee which remained unheeded to and the impugned assessment order came to be passed. In view of the aforesaid, we are of the considered view that the procedure established by law, particularly, the opportunity of personal hearing was unfairly denied to the petitioner-assessee. It is trite law when a thing is prescribed to be done in a particular manner, it must be done in that manner or not at all. When the procedural breach relates to infraction of a facet of natural justice, that is, an opportunity of hearing and denial thereof prejudices the assessee to effectively respond to intricate issues of fact and law as in the present case, the impugned order is liable to be set aside on that score alone. Hence, we are inclined to set aside the impugned assessment order and remand the matter to the assessing 3 authority for fresh consideration after giving an opportunity of hearing to the petitioner. Accordingly, the Writ Petition is allowed. The impugned order, dated 25.01.2021, is set aside and the matter is remanded to the assessing authority-1st respondent, who is directed to give an opportunity of personal hearing to the petitioner-assessee and after considering submissions made by the latter to pass an appropriate order thereon within two (2) months from the date of communication of this