M/S Priya Enterprises vs. State Of U.P. And Another

Neutral Citation No. - 2025:AHC:74196-DB Chief Justice's Court Case :- WRIT TAX No. - 2051 of 2025 Petitioner :- M/s Priya Enterprises Respondent :- State of U.P. and another Counsel for Petitioner :- Ajay Kumar Kashyap, Ravindra Kumar Rastogi Counsel for Respondent :- Ankur Agarwal, S.C. Hon'ble Arun Bhansali,Chief Justice Hon'ble Kshitij Shailendra,J. 1. This petition has been filed by the petitioner aggrieved of the order dated 28.02.2025, Annexure - 6, passed by the respondent no. 2/Assistant Commissioner - I, Dhampur under Section 73 of the U.P. Goods and Services Act, 2017 ('Act') for the period April, 2020 to March, 2021. 2. The petitioner was issued notice under Section 61 of the Act indicating discrepancies in the return after scrutiny. The petitioner filed its reply to the said notice on 28.09.2024. However, dissatisfied with the reply filed, a show cause notice under Section 73 of the Act was issued to the petitioner, wherein the petitioner was required to file reply by 28.12.2024 and date of personal hearing was fixed as 03.01.2025. The petitioner filed reply to the show cause notice on 17.01.2025. Whereafter, it appears that without providing opportunity of personal hearing, the order impugned dated 28.02.2025 under Section 73(9) of the Act has been issued creating demand against the petitioner. 3. Learned counsel for the petitioner made submissions that once the reply to the show cause notice under Section 73 of the Act was filed by the petitioner, before passing the order impugned, it was incumbent on the Assistant Commissioner to afford opportunity of personal hearing, which was denied. 4. Submission has been made that it was specific case of the petitioner that it had not claimed excess ITC but by mistake the same was claimed in wrong head i.e. the petitioner availed ITC in IGST head by mistakenly claiming the same in CGST - SGST head at the time of filing the GSTR 3B and that the allegations made were revenue neutral. However, as no opportunity of personal hearing was accorded, the petitioner could not substantiate the response to the show cause notice and the Assistant Commissioner, finding deficiency in the response which was not put to the petitioner, has passed the order impugned, which resulted in injustice to the petitioner. 5. Further submission has been made that action of the authority in not providing opportunity of personal hearing is contrary to the provisions of Section 75(4) of the Act and therefore, the order impugned deserves to be quashed and set aside. 6. Learned Standing Counsel supported the order impugned. Submission has been made that the plea raised by the petitioner by filing reply to the show cause notice has been appropriately considered by the authority and in case the petitioner has any grievance qua the merit of the order, it must file appeal under Section 107 of the Act and filing of the writ petition bypassing the alternative remedy cannot be permitted and therefore, the petition be dismissed. 7. We have considered the submissions made by counsel for the parties and perused the material available on record. 8. It may be seen that when the notice under Section 73 of the Act was issued to the petitioner, 03.01.2025 was fixed the date of personal hearing. However, the response was filed after the said date on 17.01.2025 and order impugned came to be passed on 28.02.2025, without providing/offering opportunity of personal hearing to the petitioner despite the fact there was sufficient time available to the authority between 17.01.2025 to 28.02.2025. Not fixing a date for providing personal hearing, is contrary to the spirit of the provisions of Section 75(4) of the Act, which inter alia requires grant of opportunity of personal hearing before passing an