Bhoora Ali vs. Additional Commissioner Grade-2 And 2 Others

Facts

The petitioner, Bhoora Ali, filed a writ petition challenging an order passed by the Additional Commissioner Grade-II (Appeal) III, Commercial Tax, Ghaziabad. This appellate order dismissed the petitioner's appeal against an ex parte order dated 20.02.2020, passed under Section 129(3) of the Uttar Pradesh Goods and Services Tax Act, 2017. The petitioner's primary contention was that while he was served notice for a proceeding fixed for 10.02.2020, no order was passed on that date. Subsequently, an order to proceed ex parte was made on 15.02.2020, and the final order was passed on 20.02.2020 without further intimation or a second notice to the petitioner, thus denying him an opportunity to be heard. The revenue argued that the petitioner's non-appearance on 10.02.2020 and subsequent failure to inquire about the next date was due to his own lack of diligence.

Held

The Court held that the ex parte order dated 20.02.2020, passed under Section 129(3) of the Uttar Pradesh Goods and Services Tax Act, 2017, was not sustainable. While acknowledging that the petitioner was served notice for 10.02.2020, the Court noted that no order was passed on that date. The subsequent order dated 15.02.2020 clearly indicated that the proceedings were kept pending and an order to proceed ex parte was made. Even if the petitioner failed to file a reply, the Court reasoned that this did not extinguish his right to be heard before a final order was passed. The appellate authority erred in upholding the ex parte order. The Court found that the order dated 20.02.2020 could not be sustained regardless of how the matter was viewed. Consequently, the orders dated 03.06.2020 and 17.07.2020 were set aside. The matter was remitted to the proper officer for passing a fresh order in accordance with the law. The petitioner was granted one last opportunity to file his reply within a week.

Key Issues

1. Whether the ex parte order dated 20.02.2020, passed under Section 129(3) of the Uttar Pradesh Goods and Services Tax Act, 2017, is sustainable in law, given that no order was passed on the initially fixed date of 10.02.2020, and the petitioner was not served a second notice before proceeding ex parte on 15.02.2020 and passing the final order on 20.02.2020? Petitioner's Argument: The petitioner argued that when the proper officer intended to pass an order on a date other than the one fixed (10.02.2020), a second notice intimating the new date should have been served. The failure to do so violated the principles of natural justice and rendered the order dated 20.02.2020 illegal, as it was passed without affording an adequate opportunity of hearing. Respondent's (Revenue's) Argument: The revenue contended that the petitioner was responsible for his predicament due to his failure to appear on 10.02.2020, despite service of notice. It was argued that the petitioner should have exercised due diligence and inquired about the next date fixed for the proceedings. Therefore, there was no error in the orders passed by the proper officer or the appellate authority.