Bakhtawar Malik vs. Union Of INDIA Th Secretary Ministry Of Finance New Delhi And Others

Held

The Court, without commenting on the merits of the case, disposed of the petition by permitting the petitioner to respond to the show cause notice within 15 days from the date of the order. The respondents were directed to pass an appropriate order in accordance with law after considering the petitioner's reply within two weeks thereafter. This decision was made in light of the submission by the learned Senior AAG that if the petitioner responded to the show cause notice within 10 days, it would be considered, and a fresh order would be passed. The Court's reasoning was to allow the petitioner an opportunity to present their case, effectively bypassing the immediate issue of maintainability and limitation by facilitating a fresh consideration of the matter. The ratio decidendi is that in cases where there are allegations of procedural irregularities and potential violations of natural justice, and where a party is willing to participate in the proceedings, the court may grant an opportunity for such participation to ensure a fair adjudication, even if an alternative remedy exists.

Facts

The petitioner, Bakhtawar Malik, challenged a letter dated 24.01.2023, an order dated 04.04.2023 passed under Section 74 of the J&K GST Act, and another order dated 04.04.2023 concerning suppression of turnover. The petitioner claimed no default in tax payment and violation of natural justice, stating the Section 74 order was never served. The petitioner learned of the order when their bank account was attached for recovery. Attempts to file a statutory appeal under Section 107 were met with the understanding that the limitation period had expired. The respondents contended the writ petition was not maintainable as an appeal was available. They stated that for the tax period December 2018 to March 2019, the petitioner received Rs. 14,11,900/- but declared Nil outward liabilities, leading to proceedings under Section 74. A statutory notice dated 24.01.2023 was allegedly served on the petitioner's registered e-mail, which went unanswered, resulting in the impugned order.

Key Issues

1. Whether the impugned orders, specifically the order dated 04.04.2023 passed under Section 74 of the J&K GST Act, 2017, were passed in violation of the principles of natural justice due to non-service upon the petitioner? (Question of law and fact, turning on Section 74 and principles of natural justice). 2. Whether the writ petition is maintainable in light of the alternative remedy of statutory appeal under Section 107 of the J&K GST Act, 2017? (Question of law, turning on Section 107). Petitioner's Arguments: The petitioner argued that the orders were passed in violation of natural justice as the Section 74 order was never served. They claimed the e-mail ID mentioned by the respondents did not belong to them. They also stated that attempts to file a statutory appeal were unsuccessful due to perceived limitation issues. Respondents' Arguments: The respondents argued that the writ petition was not maintainable as an appeal under Section 107 of the GST Act was available. They asserted that the statutory notice dated 24.01.2023 was served on the petitioner's registered e-mail, and the impugned orders were passed after affording due opportunity of hearing.