M/S Sonker Gas, (Legal Name Sonker Gas) vs. State Of Up And 2 Others
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The petitioner, M/s Sonker Gas, a proprietorship firm engaged in the cooking gas refill business, is challenging an order dated 22.04.2024 passed by the Deputy Commissioner, State GST, Kanpur, which created a demand of Rs. 1,73,686/-. A notice under Section 61 of the GST Act, 2017, was issued on 25.10.2023, indicating discrepancies in the petitioner's returns after scrutiny. The petitioner failed to reply to this notice. Subsequently, a notice under Section 73 of the Act was issued on 15.12.2023 for the tax period April 2018 to March 2019, requiring the petitioner to show cause against the identified discrepancies. The petitioner filed a reply on 18.12.2023, denying the allegations and requesting adjustment of the demand from unclaimed Input Tax Credit (ITC) and waiver of penalty. A reminder notice was issued on 02.04.2024, fixing 08.04.2024 for filing a further reply and 09.04.2024 for a personal hearing. No one appeared for the petitioner, and no additional reply was filed, leading to the impugned order.
Held
The Court held that the plea regarding the violation of principles of natural justice loses significance because the petitioner was issued a notice for a hearing on 09.04.2024 and chose not to appear. The Court found that the reply filed by the petitioner on 18.12.2023 contained only cursory indications for the issues raised in the show cause notice, and the annexed financial documents did not provide support for the contentions. The Court observed that the impugned order was not non-speaking, as the contentions raised in the reply were considered and not accepted by the Authority. Furthermore, the Court noted that the petitioner was aggrieved by the order and was required to question its validity by filing an appeal, which was not done without any stated reason. The Court concluded that filing a writ petition to question the merit of the order, without any grounds for invoking jurisdiction under Article 226 of the Constitution, could not be countenanced. The Court found no reason to interfere with the impugned order. The petition was dismissed.
Key Issues
1. Whether the impugned order dated 22.04.2024, passed by the Deputy Commissioner, State GST, Kanpur, is liable to be quashed and set aside for being passed without application of mind, without legal basis, and in violation of the principles of natural justice, as argued by the petitioner? 2. Whether the petitioner was provided with adequate opportunity of hearing, as contended by the respondent State? 3. Whether the petitioner's plea for adjustment of demand from unclaimed ITC amounts to an admission of the outstanding amount, as argued by the respondent State? 4. Whether the writ petition is maintainable given the availability of an alternative remedy of appeal, which was not availed by the petitioner within the statutory period, as argued by the respondent State? Petitioner's arguments: The petitioner contended that the show cause notice and the impugned order were passed without application of mind and legal basis, violating principles of natural justice. They also argued that after filing their reply, no date was fixed for four months, and a subsequent reminder escaped their attention. Respondent State's arguments: The respondent State argued that a notice for personal hearing was issued on 09.04.2024, refuting the claim of no opportunity. They further submitted that the petitioner's reply was considered, and the prayer for adjusting demand from unclaimed ITC was an admission of the outstanding amount. The State also argued that the writ petition was not maintainable as the petitioner had an alternative remedy of appeal which was not exercised within the limitation period.
Sections Cited
Section 61, Section 73
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Neutral Citation No. - 2025:AHC:36832-DB Chief Justice's Court Case :- WRIT TAX No. - 982 of 2025 Petitioner :- M/s Sonker Gas, (Legal Name Sonker Gas) Respondent :- State of UP and 2 others Counsel for Petitioner :- Vedika Nath, Yashonidhi Shukla Counsel for Respondent :- C.S.C., Ankur Agarwal (S.C.) Hon'ble Arun Bhansali,Chief Justice Hon'ble Kshitij Shailendra,J.
This petition is directed against order dated 22.04.2024 (Annexure No. 1) passed by Deputy Commissioner, State GST, Kanpur, whereby a demand of Rs. 1,73,686/- has been created against the petitioner.
Submissions have been made that the petitioner is a proprietorship firm engaged in the business of cooking gas refill and other accessories and is a distributor for Indian Oil Corporation. A notice under Section 61 of the Goods and Services Tax Act, 2017 (for short 'the Act') was issued to the petitioner on 25.10.2023, inter alia, intimating the discrepancies in the return after scrutiny. The petitioner did not file any reply to the said notice, therefore, a notice under Section 73 of the Act was issued to the petitioner on 15.12.2023 for the tax period April, 2018 to March, 2019 requiring the petitioner to show cause on various grounds pertaining to the discrepancies as indicated in the notice under Section 61 of the Act. The petitioner filed reply to the show cause notice on 18.12.2023 denying the indications made in the show cause notice and requesting to adjust the demand from unclaimed ITC and waive the penalty, whereafter a reminder dated 02.04.2024 was issued fixing 08.04.2024 as the date for filing further reply and for personal hearing on 09.04.2024, however, no one appeared and no additional reply was filed, based on which, the order impugned dated 22.04.2024 was passed by the Authority.
It is submitted by learned counsel for the petitioner that after filing a reply, no date was fixed by respondent No. 3 for a period of four months and a reminder, which was issued (Annexure No. 8), escaped the attention of the petitioner. Submissions have been made that the show cause notice and the order impugned has been passed without application of mind and without any legal basis, in violation of principles of natural justice and therefore, the same deserves to be quashed and set aside.
Learned Standing Counsel contested the submissions made. It was submitted that after the reply was filed on 18.12.2023, a notice (Annexure No. 8) was issued fixing 09.04.2024 as the date for providing personal hearing and therefore, the plea raised that no opportunity of hearing was provided is baseless. Further submissions have been made that the reply filed was duly taken into consideration by passing the order impugned as the reply itself was laconic and a prayer was made for adjusting the demand from unclaimed ITC, the same was necessarily in admission of the amount being outstanding and therefore, the plea raised in this regard, apparently, has no substance. Submissions have also been made that the petitioner had an alternative remedy for filing appeal, however, it chose not to file the same within the statutory period of limitation and after passage of over 10 months, it has filed the writ petition seeking to question the order dated 24.04.2024 and therefore on that count also, the petition deserves dismissal.
We have considered the submissions made by learned counsel for the parties and have perused the material available on record.
Admittedly, notice under Section 61 of the Act was issued to the petitioner pointing out the discrepancies, when the same was not responded, show cause notice incorporating the said deficiencies was issued to which a reply (Annexure No. 6) dated 18.12.2023 was filed. A perusal of the reply indicates that for the various issues indicated in the show cause notice, apparently, cursory indications were made and the copies of balance-sheet, trading account and profit and loss account were annexed wherein no details/particulars of any nature relevant to the discrepancy pointed out were available/had any support to the contention raised in reply to the show cause notice.
The Authority, taking into consideration the plea raised in the reply to the show cause notice, passed the order dated 22.04.2024. The nature of order which has been passed, it cannot be said that the same is non-speaking as the contentions raised, have been considered and not accepted by the Authority.
The plea, regarding violation of principles of natural justice, looses significance once petitioner was issued notice for date of hearing dated 09.04.2024 (Annexure No. 8) and petitioner chose not to appear.
Once by passing of the order, the petitioner was aggrieved, it was required of the petitioner to question its validity by filing the appeal. Apparently, no appeal has been filed and no reason is forthcoming. Filing of the writ petition, wherein apparently, petitioner is seeking to question the merit of the order dated 22.04.2024 and none of the grounds for invoking juri iction under Article 226 of the Constitution are available in the present case, cannot be countenanced. We do not find any reason to interfere with the order impugned.
The petition has no substance, the same is, therefore, dismissed. Order Date :- 12.3.2025 Mukesh Pal (Kshitij Shailendra, J) (Arun Bhansali, CJ) MUKESH PAL High Court of Judicature at Allahabad
Reproduced from the public record of the Allahabad High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.