Uts Impex vs. Union Of INDIA
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The petitioner challenged an order-in-original concerning alleged irregular availment of input tax credit. The petitioner argued that the impugned order wrongly stated that no response was filed to the show cause notice, when a reply was indeed submitted and acknowledged.
Held
The Court found that the findings in the impugned order were contrary to the materials on record, as it failed to consider the petitioner's reply to the show cause notice. Therefore, the matter was remanded for fresh consideration.
Key Issues
Whether the impugned order was passed without due consideration of the petitioner's reply to the show cause notice and whether the findings were perverse.
Sections Cited
Section 107
AI-generated summary — verify with the full judgment below
Cause title — parties, addresses and appearances
The Court made the following: ORDER
THE HON'BLE SRI JUSTICE P.SAM KOSITY AND THE HON'BLE SRI JUSTICE N.TUI(ARAMJI WRIT PETITION No. L97O ol 2o24 ORI)ER: per ao n'bte Sri Justte P,SAII TOSIIYi Heard Mr.Kailash Nath P.S.S. learned counsel for the petitionei, Mr.B.Mukharjee, learned counsel appeared on behalf of Mr.Gadi Praveen Kumar, learned Deputy Solicitor General of India, for respondent No. I and Ms.B.Sapna Reddy, learned Standing Counsel appeared on behalf of Mr.Dominic Fernaldes, learned Senior Standing Counsel for respondent Nos.2 and 3. Perused the material available on record.
The Challenge in the present writ petition of the order dated 27.12.2O23-Ex.PI, passed by the 2nd respondent. Though, the order under challenge is an appealable order, but on the ground of perversity and the part of the respondents, the petitioners have filed the present writ petition challenging the same.
Learned counsel for the petitioner drew the attention of the Bench of the show cause notice issued by the Department in respect of alleged irregular availment of input tax credit bv the petitioner's establishment for the period between 2Ol7 -2018 to 2021. 'lhe show cause notice issued by the Department in this regard rvas dated, 27 -O9-2O23-Ex.P6. The record shorvs that the 2 petitioners have also replied to the said show cause notice vide their response dated 29,10.2023, which rvas received by the Department on the 30.10.2O23. 4. l.earned counsel for the petitioner referred to the document Ex.P7, which bears the seal and signature of the authority who has received the response on 3O.1O.2O23, which is the response given by the petitioners to the show cause notice dated 27.09.2O23. In the teeth of tJ:e reply that the petitioner has submitted the learned counsel for the petitioner referred to the contents of paragraphs 17 and 19 of the impugn ed order. In the said two paragraphs, the 2nd respondent has in very categorical terms held that though the show cause notice was issued but the petitioners did not respond for a period of more than one (O 1) year. At the same time in paragraph 19, the 2"d respondent holds that the petitioners did not respond to the show cause notice even after a lapse of three (03) months. The findings in both these paragraphs i.e., 17 and 19 is contrary to the facts available on record which would reveal that the petitioner did receive the show cause notice oo 27.O9.2023 and in just around a months time, the reply to the show cause notice was also tendered with the department as would be evident from Ex.P7. 3
In view of the sarne, this Bench is of the considered opinion that the frndings of the authorities concerned seems to have been totally ignoring the reply which the petitioner had submitted to the show camse notice. In addition to this the learned counsel for the petitioner further submits that though there were personal notice issued, but the petitioner had repeatedly requested for the change of date which was not acceded to by the respondent/authorities. Therefore, the petitioner prayed that he may be granted an another opportunity and thereafter, the authorities may consider the same and pass fresh order after due consideration of the reply that they have submitted vide Ex.P7 dated 3O.LO.2O23. 6. Learned counsel for the Department on the other hand, referring to the contents of paragraph 18 of the impugned order submits that there are three notices that were issued for personal hearing on 13.11.2023, 24.11.2023 and 13.12.2023. Further, it u,as contended that all these three notices were duly served upon the petitioner but the petitioner chose not to respond to the same and to enter appearance before the authorities concerned except for seeking an adjournment that too by sending whatsApp messages. This otherwise was not the proper course of action rvhich the petitioner should have adopted and the petitioner should have effectively defended his case at the time of personal hearing
4 and therefore, the said order does not warrant. In addition, the learned counsel for the Department also contended that in any case the order is an appealable order under Section 1O7 of the Central Goods and Service Tax Act and therefore, the writ petition should not be entertained on this ground also.
Having heard the contentions on either side and on perusal of record, we are of the considered opinion that the hndings given by the authority concerned in paragraphs, even if it is ignored the findings in paragraphs 18 and 19 are contrary to the materials on record. It also forces us to draw adverse inference so far as the impugned Order being passed without due consideration of any of the averments and conterrtions that the petitioner has raised in response to the show cause notice. There is no discussion whatsoever as regards the reply dated 30. lO-2O23' submitted by the petitioner. We are inclined to entertain writ petition only on this ground and refer the matter back to the 2"d respondent for passing a fresh order, after due consideration of the reply to the show cause notice and after giving a fresh personal hearing to the petitioner, so far as show cause notice dated' 27 'O9 2023 is concerned.
Since we are remanding the matter back for fresh consideration, let the petitioner appear before the 2"d respondent on 15.02.2024, for personal hearing. It is made clear that there
- 5 would be no further necessity for issuance of any fresh notice in this regard The petitioner may make his submissions in support of his contentions and the authority concerned shall duly consider the contentions of the petitioners as also the contentions that he has raised in the reply to the show cause notice and pass a fresh order in accordance with law.
Accordingly, this writ petition stands allowed and the impugned order-annexure P- 1, is set aside and the matter is remanded back to the 2"d respondent for a fresh order to be passed in terms of the directions given in the preceding paragraph. Miscellaneous Petitions pending if any shall stand closed. N. SRIHARI ASSISTANT REGTSTRAR //// SECTION OFFICER '1 . The Secretary, Union of lndia, Ministry of Finance, Department of Revenue, New Delhi.
The Assistant Commissioner, Customs and Central Tax, Abids Division, 5-8- 196 to 5-8-207lA, 1St Floor, Akira Shikra Plaza, Nampally, Hyderabad - 500001
The Superintendent of Central Tax, Gunfoundry-ll GST Range, Abids GST Division, Hyderabad GST Commissionerate, 5-8-196 lo 5-8-20714,1St Floor, Akira Shikra Plaza, Nampally, Hyderabad - 500001
One CC to SRl. KAILASH NATH P. S. S., Advocate [OPUC]
One CC to SRl. GADI PRAVEEN KUMAR, Dy. SOLICITOR GEN. OF INDIA toPUCl
One CC to SRl. DOMINIC FERNANDES, STANDING COUNSEL IOPUC]
One CC to M/s. B. SAPNA REDDY, STANDING COUNSEL [OPUC]
Two CD Copies BM GJP To,
HIGH COURT DATED:2910112024 ORDER WP.No.1970 of 2024 ALLOWING THE WRITPETITION WITHOUT COSTS \o ;rx s* SF ry ,v <? &o * C -\Er * 7 1 ! \ ;. C, 1L C,) UJ F G
Reproduced from the public record of the Telangana High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.