Annu Projects Limited (Formerly Known As Annu Projects PVT. LTD) vs. The Sr. Joint Commissioner, State Tax, GST Appeal And Ors
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The petitioner, Annu Projects Private Limited, filed a writ petition challenging an order dated January 22, 2025, passed by the appellate authority. This order rejected the petitioner's appeal on grounds of delay. The original order under challenge was passed under Section 73 of the WBGST/CGST Act, 2017, for the tax period April 2018 to March 2019, dated April 24, 2024. The petitioner contended that the show cause notice issued on December 15, 2023, was uploaded under the "Additional notices and orders" tab, providing inadequate intimation. Consequently, the order under Section 73 was passed ex parte, and the petitioner was not afforded an opportunity of hearing as required by Section 75(4) of the Act. The petitioner also argued that the delay in filing the appeal was marginal and due to their lack of awareness of the order's passing.
Held
The Court held that the order passed under Section 73 of the WBGST/CGST Act, 2017, dated April 24, 2024, could not be sustained. This decision was based on the admitted non-compliance with the statutory provision requiring the adjudicating authority to afford the petitioner an opportunity of hearing, as stipulated under Section 75(4) of the said Act. The Court found that the petitioner was not given a proper hearing. While acknowledging a marginal delay in preferring the appeal, the Court considered the admitted procedural lapse by the adjudicating authority as a significant factor. Consequently, the order passed under Section 73 was set aside, and the matter was remanded back to the adjudicating authority for a fresh decision on merits. The appellate authority's order rejecting the appeal was also set aside. The petitioner was granted liberty to file a response to the original show cause notice within two weeks, after which the adjudicating authority was directed to hear and dispose of the proceedings on merits after providing an opportunity of hearing. The pre-deposit made by the petitioner was to be retained to the credit of the proceedings.
Key Issues
1. Whether the order passed under Section 73 of the WBGST/CGST Act, 2017, dated April 24, 2024, is sustainable given the alleged non-compliance with statutory provisions regarding opportunity of hearing under Section 75(4) of the said Act. 2. Whether the appellate authority erred in rejecting the petitioner's appeal solely on the ground of marginal delay, considering the circumstances surrounding the petitioner's awareness of the original order. Petitioner's arguments: The petitioner argued that the show cause notice and the subsequent order under Section 73 were uploaded under the "Additional notices and orders" tab, leading to a lack of adequate intimation. They further contended that the adjudicating authority failed to provide an opportunity of hearing as mandated by Section 75(4) of the said Act. The petitioner also submitted that the delay in filing the appeal was marginal and attributable to their unawareness of the order. Revenue's arguments: The judgment records no specific arguments made by the State/Revenue.
Sections Cited
Section 73, Section 75(4)
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Cause title — parties, addresses and appearances
delay in submitting the appeal from an order passed under Section 73 of WBGST/CGST Act, 2017 (hereinafter referred to as the “said Act”) for the tax period April 2018 to March 2019 dated 24th April, 2024, the instant writ petition has been filed.
According to Mr. Agarwal, learned advocate appearing for the petitioner although a show cause notice in Form GST DRC-01 was issued on 15th December, 2023, such show cause notice was uploaded under “Additional notices and orders” tab and as such, the petitioner had no adequate intimation with regard to the aforesaid show cause notice. The order passed under Section 73 of the said Act was 2WPA 4625 of 2025 passed ex parte. According to him, the proper officer also did not afford the petitioner with an opportunity of hearing as is required under Section 75 (4) of the said Act. This apart, he submits that there was a marginal delay in filing
the appeal since the petitioner was not aware with regard to the factum of passing of the aforesaid order since the order under Section 73 of the said Act itself was also uploaded under “Additional notices and orders” tab.
Having heard the learned advocates appearing for the respective parties I find that there is a marginal delay in preferring the aforesaid appeal. However, having regard to the admitted position
as regards non compliance of statutory provision in not affording opportunity of hearing to the petitioner by the adjudication authority as is required under Section 75(4) of the said Act, I am of the view that the order passed under Section 73 of the said Act dated 24th April, 2024 cannot be sustained and the same is accordingly set aside and the matter is remanded back to the adjudicating authority for a fresh decision on merits.
The petitioner shall be at liberty to file response to the original show cause notice dated 15th December 2023 within two weeks from date. In 3 WPA 4625 of 2025 the event, such response is filed, the adjudicating authority / proper officer upon giving an opportunity of hearing to the petitioner, shall hear out and dispose of the proceedings on merits in accordance with law. As a sequel thereto, the order dated 22nd January, 2025 passed by the appellate authority is also set aside.
The pre deposit made by the petitioner should be retained to the credit of the proceedings.
With the above direction and observation, the writ petition is disposed of.
All parties shall act on the basis of server copy of this order duly downloaded from this Court’s official website. (Raja Basu Chowdhury, J.)
Reproduced from the public record of the Calcutta High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.