Eminent Logistics vs. The Assistant Commissioner Of State Tax Ballygunge Charge And Ors
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The petitioner, Eminent Logistics, challenged a final order issued under Section 73 of the WBGST/CGST Act, 2017, for the tax period April 2022 to March 2023. The petitioner argued that the show-cause notice dated 28th May 2024 did not specify a date for personal hearing, violating their right to be heard under Section 75(4) of the Act. The respondents contended that the petitioner was given repeated opportunities to respond but failed to do so. However, they did not dispute that no personal hearing was afforded.
Held
The Court held that while the petitioner did not explicitly request a personal hearing in writing, Section 75(4) of the Act mandates that the proper officer must afford an opportunity of hearing if an adverse decision is contemplated against the taxpayer. The Court found that the show-cause notice was served, and the petitioner did not file a response, but the final order was adverse. Therefore, the proper officer ought to have provided a personal hearing before passing the order under Section 73. Consequently, the Court set aside the order dated 28th May 2025 and remanded the matter back to the proper officer for a decision on merits, directing that a personal hearing be provided. The Court noted that no further opportunity to file a response would be given to the petitioner, but any documents submitted during the personal hearing would be considered.
Key Issues
1. Whether the final order issued under Section 73 of the WBGST/CGST Act, 2017, is sustainable when the show-cause notice did not specify a date for personal hearing, thereby violating the petitioner's right to a hearing under Section 75(4) of the said Act? The petitioner argued that the absence of a specified date for personal hearing in the show-cause notice rendered the subsequent order invalid, relying on the judgment in Greentech IT City (P) Ltd. v. State of West Bengal. The petitioner contended that Section 75(4) mandates an opportunity of hearing, especially when an adverse decision is contemplated. The revenue, represented by the State, did not dispute the lack of personal hearing but argued that the petitioner had failed to avail repeated opportunities to file a response.
Sections Cited
Section 73, Section 75(4)
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2025 Charge & Ors.
Mr. Avra Mazumder
Ms. Alisha Das
Mr. Suman Bhowmik
Mr. Samrat Das
Ms. Elina Dey
…. for the petitioner
Mr. Anirban Ray, Ld. GP
Mr. T.M. Siddiqui, Sr. Advocate
Mr. Tanoy Chakraborty
Ms. Sumita Shaw
Mr. Saptak Sanyal
….. for the State
The present writ petition has been filed, inter alia, challenging the final order issued under Section 73 of the WBGST/CGST Act, 2017(hereinafter referred to as the said Act) for the tax period of April, 2022 to March, 2023. 2. Mr. Mazumder, learned advocate representing the petitioner by drawing attention of this Court to the show-cause notice issued in form GSTDRC 01 dated 28th May, 2024 would submit that the said notice is conspicuously silent about the date for providing personal hearing. He would submit that although, there is no dispute with regard to the receipt of the show-cause notice, however having regard to the right of the petitioner to be entitled to a personal hearing in consonance with the provisions of Section 75(4) of the
2 said Act, the aforesaid order cannot be sustained and should be set aside. In support of his contention he has placed reliance on a judgment delivered by this Court on 19th May, 2025 in the case of Greentech IT City (P) Ltd. v. State of West Bengal, reported in [2005]174 taxman.com 1048 (Calcutta).
Mr. Chakraborty, learned advocate appears on behalf of the respondents. He would at the very outset submit that in this case repeated opportunity was given to the petitioner to file response. The petitioner choose not to avail of such opportunity. However, he does not dispute the fact that in the instant case, no opportunity of personal hearing was afforded to the petitioner.
Having heard the learned advocates appearing for the respective parties and considering the materials on record, I find that in the instant case, a show-cause notice was duly served on the petitioner. The petitioner however did not avail the opportunity to file any response. However, it is the mandate of Section 75(4) of the said Act which, inter alia, makes it obligatory for the proper officer before passing any order under Section 73 or Section 74 of the said Act to afford an opportunity of hearing if, a request is made by a notice in writing for a personal hearing or if, an adverse decision is contemplated against the tax payer. It is true that in the instant case no request was made in writing by the petitioner
3 for personal hearing, however, considering the show cause and the fact that the an adverse order was contemplated against the petitioner, I am of the view that the proper officer ought to have given the petitioner an opportunity of hearing prior to disposal of the proceeding under Section 73 of the said Act.
Having regard thereto, I am inclined to set aside the order passed by the proper officer dated 28th May, 2025 and to remand the matter back to the proper officer for a decision on merit. The proper officer is directed to dispose of the proceeding by providing an opportunity of hearing to the petitioner. Since the petitioner has not file any response despite being repeatedly being called on, no further opportunity be made available to the petitioner to file any further response by the proper officer while deciding the matter afresh. He shall however be obliged to afford a personal hearing to the petitioner and in course of such opportunity, if any documents are placed he shall consider the same.
With above observations and directions, the writ petition is disposed of.
(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.