Shree Computers Sales Private Limited vs. Senior Joint Commissioner Of Revenue And Ors.
Original PDF →Facts
The petitioner, Shree Computers Sales Private Limited, challenged an order dated April 27, 2024, passed under Section 73 of the CGST/WBGST Act, 2017, concerning the tax period April 2018 to March 2019. The petitioner contended that the show cause notice dated December 29, 2023, did not offer a personal hearing. While the petitioner's reply dated January 29, 2024, requested a personal hearing, the proper officer proceeded to pass the impugned order without granting this opportunity. The State respondents were represented by learned advocates. The court considered the materials on record and the arguments presented by both sides.
Held
The Court held that the impugned order dated April 27, 2024, passed under Section 73 of the CGST/WBGST Act, 2017, was vitiated due to a breach of Section 75(4) of the said Act. Section 75(4) mandates that an opportunity of hearing must be granted if a request is received in writing from the person chargeable with tax or penalty, or if any adverse decision is contemplated against such person. In this case, the petitioner had requested a personal hearing in their reply, and the order passed was adverse. Therefore, the failure to provide a personal hearing rendered the order invalid. The Court set aside the impugned order and remanded the matter back to the proper officer for re-adjudication. The proper officer was directed to grant the petitioner an opportunity of personal hearing and to dispose of the proceedings expeditiously, preferably within 8 weeks.
Key Issues
1. Whether the respondents could dispose of proceedings under Section 73 of the CGST/WBGST Act, 2017, without affording an opportunity of personal hearing to the petitioner, especially when an adverse decision was contemplated, contrary to Section 75(4) of the said Act? Petitioner's Contention: The petitioner argued that no opportunity for personal hearing was provided, despite their explicit request in their reply dated January 29, 2024. They relied on the fact that the show cause notice did not offer a hearing and the subsequent order was passed without one. Revenue/State's Contention: The judgment records that learned advocates appeared for the State respondents, but it does not detail their specific arguments or any authorities/precedents they may have relied upon. The court proceeded based on the admitted facts and the statutory provisions.
Sections Cited
Section 73, Section 75(4)
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M/L 12 08.08.2024 sb Ct 5
IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURI ICTION APPELLATE SIDE
WPA 14635 of 2024
Shree Computers Sales Private Limited Versus Senior Joint Commissioner of Revenue, State Tax & Ors.
Mr. Akshit Agarwal
… For the petitioners.
Mr. Anirban Ray, Ld. GP
Md. T. M. Siddiqui
Mr. Tanoy Chakraborty
Mr. Saptak Sanyal
… For the State
The present writ petition has been filed, inter alia, challenging the order dated 27th April, 2024, passed under Section 73 of the CGST/WBGST Act, 2017 (hereinafter referred to as the “said Act”), for the tax period April, 2018 to March, 2019. 2. The short point that falls for consideration in the present writ petition is whether the respondents could have disposed of the proceedings without giving an opportunity of personal hearing to the petitioner, especially when the same contemplated adverse decision against the petitioner.
Mr. Agarwal, learned advocate appearing on behalf of the petitioner by drawing attention of this Court to the
2 show cause notice dated 29th December, 2023 issued in Form GST DRC-01 would submit that no opportunity of personal hearing was afforded to the petitioner. It is submitted that by its response dated 29th January, 2024, although the petitioner had opted for personal hearing, the proper officer without affording the petitioner an opportunity of personal hearing was, inter alia, pleased to dispose of the said proceedings by passing the order which is impugned in the present writ petition.
Mr. Siddiqui, learned advocate enters appearance on behalf of the State respondents.
Heard the learned advocates appearing for the respective parties and considered the materials on record. Admittedly, in this case a notice in Form GST DRC 01 dated 29th December, 2023 was issued. From the show cause notice it would appear that no opportunity of personal hearing was offered to the petitioner. The petitioner had, however, while filing its reply on 29th January, 2024, had requested for personal hearing. Notwithstanding the aforesaid, the order impugned was passed without affording an opportunity of personal hearing.
It would appear that in terms of Section 75(4) of the said Act an opportunity of hearing is required to be
3 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.
Having regard to the aforesaid, the order impugned is vitiated on the ground of breach of provisions of Section 75(4) of the said Act.
In view thereof, the order dated 27th April, 2024 passed under Section 73 of the said Act is set aside and the matter is remanded back to the proper officer.
The proper officer is directed to re-adjudicate the aforesaid issue upon giving an opportunity of personal hearing to the petitioner or its authorized representative and to dispose of the proceeding as expeditiously as possible, preferably within a period of 8 weeks from the date of communication of this order.
With the above observations and directions, the writ petition is disposed of.
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.)
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.