Upendra Mahato vs. Union Of INDIA And Ors.
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The petitioner, Upendra Mahato, a registered taxpayer under the GST Act, challenges an order passed by the CGST authorities. A show cause notice was issued on September 18, 2023, for the tax period July 2017 to March 2018. The petitioner claims to have responded on December 15, 2023, but an order in original was passed on December 14, 2023. The demand was raised on December 20, 2023. The petitioner later applied for rectification under Section 161 on January 26, 2024, arguing their reply and prior payment of tax, interest, and penalty for financial years 2017-18, 2018-19, and 2019-20 were not considered. The respondents contended the show cause notice was issued under Section 73, and the order was passed ex parte due to the petitioner's non-response within the stipulated time.
Held
The Court held that the petitioner's contention regarding the non-compliance of the show cause notice and the lack of personal hearing was an afterthought. This was because these grounds were not raised in the rectification application filed by the petitioner. The Court noted that the response to the show cause was filed more than two months after the due date, with no explanation for the delay provided in the rectification application. Consequently, there appeared to be no valid ground for invoking Section 161. The Court found that the petitioner had an alternative remedy of appeal but chose not to pursue it, filing the writ petition more than a year after the order under Section 73 and over a month after the rejection of the rectification application. The Court also dismissed the petitioner's argument that the rectification application was decided without a hearing, stating that in the given facts, this did not justify the belated approach to the High Court. The petitioner was not permitted to frustrate the adjudicatory process. The writ petition was dismissed.
Key Issues
1. Whether the show cause notice issued under Section 73 of the CGST Act, 2017, was statutorily compliant, specifically regarding the indication of a date for personal hearing, and whether the petitioner was afforded a personal hearing? (Question of law and fact) 2. Whether the petitioner's response to the show cause notice, filed after the stipulated period, and their subsequent rectification application under Section 161 of the CGST Act, 2017, were validly considered by the authorities? Petitioner's arguments: The show cause notice lacked the date of personal hearing, and no personal hearing was granted. The authorities failed to consider the petitioner's detailed reply and the fact that the entire tax, interest, and penalty had been paid based on an audit report. The rectification application was rejected without a hearing. Revenue's arguments: The show cause notice was issued under Section 73. The petitioner failed to respond within the stipulated 30 days, leading to an ex parte order. The petitioner was afforded an opportunity of hearing but did not avail it. The delay in uploading the demand notice was due to a heavy workload and unrelated to the order passed.
Sections Cited
Section 73, Section 65(6), Section 161
AI-generated summary — verify with the full judgment below
3 29.04.2025 sb Ct 5
IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURI ICTION APPELLATE SIDE
WPA 31078 of 2024
Upendra Mahato Versus Union of India & Ors.
Mr. Himangshu Kumar Ray
Ms. Shiwani Shaw
Mr. Animitra Roy
Mr. Subhasis Podder
Mr. Piyas Chowdhury
… For the petitioner.
Mr. Kaushik Dey
Mr. Kaustuv K. Maiti
… For the CGST authorities
Although the matter has come up under the heading “Extension of Interim Order” since, the petitioner insists for hearing of the writ petition, by consent of the parties, this matter is taken up for final hearing.
The petitioner is registered under the provisions of the Central/West Bengal Goods and Services Tax Act, 2017(hereinafter referred to as the “said Act”) and is a registered tax payer.
The petitioner was served with a show cause notice in Form GST DRC 01 on 18th September, 2023. The petitioner claims to have given response to the said show cause on 15th December, 2023. In the interregnum, however, an order in original was passed on 14th December, 2023. The demand was, however,
2 raised on the basis of the aforesaid order on 20th December, 2023 in Form GST DRC 07. Still later, sometimes on 26th January, 2024, the petitioner made an application for rectification of the above order by invoking the provisions of Section 161 of the said Act on the ground that the petitioner had submitted a detailed reply which had not been considered. According to the petitioner, the petitioner after having received the order sheet of the audit report under Section 65(6) of the said Act, dated 19th January, 2023 for the Siliguri Circle in respect of the financial year 2017-18, 2018-19 and 2019-20, had paid the entire tax and interest including the penalty in Form GST DRC 03, however, without considering the same the order impugned had been passed.
Initially, when the aforesaid writ petition was taken up for consideration, by an order dated 19th February, 2025, this Court taking into consideration the fact that the order impugned had been uploaded on 20th December, 2023 while the same had been passed on 14th December, 2023, had directed the respondents to take appropriate instruction in the matter.
Today, Mr. De, learned advocate appearing on behalf of the respondents would submit that admittedly in this case a show cause dated 8th September, 2023 was issued under Section 73 of the said Act in respect of
3 the tax period July, 2017 to March, 2018. By such show cause, the petitioner had been called upon to respond to the same within 30 days from the receipt of the notice or on/or before 9th October, 2023. According to him, since the petitioner did not respond to the show cause, the order impugned has been passed ex parte. By referring to the order impugned he would submit that the petitioner was duly afforded with an opportunity of hearing, however, the petitioner did not avail the same. On the issue of uploading the Form GST DRC 07 on the portal on 20th December, 2023 he would submit that since there was heavy work load there was delay in uploading the demand raised in Form GSTDRC-07, the same has nothing to do with the order which was separately issued.
Mr. Ray, learned advocate representing the petitioner in response would, however, submit that the aforesaid show cause does not conform to the statutory provisions. The same does not indicate the date of personal hearing. The petitioner was not afforded with any personal hearing. The respondents were duty bound to consider the petitioner’s response, at least, when the petitioner had filed a rectification application. He also insists that the factum of the audit conducted by the respondents ought to have been taken into consideration, which had not been done.
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Heard the learned advocates appearing for the respective parties and considered the materials on record. In this case, it would be apparent from the above that a show cause had been issued and the petitioner did not respond to the said show cause within the time specified in the show cause. Although, Mr. Ray, contends that the show cause notice does not comply with the statutory provision and the petitioner had not been given an opportunity of hearing, no date and time was mentioned in the show cause, I, however, find that in the rectification application filed by the petitioner on 26th January, 2024, none of such grounds have been raised. The grounds raised in the rectification application have already been noted hereinabove. Having regard thereto, I am of the view that the aforesaid contention raised by Mr. Ray, in Court is an afterthought, especially when the response to the show-cause was filed more than two months after the date for filing the response had expired. No explanation for the delayed response was noted in the rectification application. There appears to be no valid ground for invoking Section 161 of the said Act. The petitioner has an alternative remedy in the form of an appeal, the petitioner however, chose not to invoke such remedy and after more than a year from the date of passing of the order under Section 73 of the said
5 Act, the instant writ petition has been filed that too after more than a month from the date of the order of rejection of the rectification application. Although Mr. Ray would contend that the respondents had decided the petitioner’s rectification application without giving an opportunity of hearing, I am of the view that in the given facts the same cannot justify the petitioners’ belatedly approaching this Court. The petitioner cannot be permitted to frustrate the adjudicatory process as provided for in the scheme of the said Act. The writ petition fails and the same is accordingly dismissed.
There shall be no order as to costs. Urgent Photostat certified copy of this order, if applied for, be made available to the parties upon compliance of requisite formalities.
(Raja Basu Chowdhury, J.)
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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.