M/S.K.Swaminathan vs. Deputy Commercial Tax Officer (State)
Original PDF →Facts
The petitioner, M/s.K.Swaminathan, filed a writ petition challenging an order of assessment dated 02.11.2023 passed by the Deputy Commercial Tax Officer (State), Tuticorin-II Assessment Circle. The petitioner contended that neither the show cause notice nor the assessment order was served personally, but rather uploaded to the GSTIN portal, which they were unable to access. This prevented them from participating in the adjudication proceedings. The core of the dispute involved an alleged mismatch between GSTR-7 and GSTR-3B returns for the assessment year 2018-2019. The petitioner claimed that technical glitches in the GST portal and their adaptation to the e-mechanism caused their inability to respond. They expressed willingness to pay 25% of the disputed tax and sought a final opportunity to present their objections.
Held
The Court held that the impugned order of assessment dated 02.11.2023 is set aside. The petitioner is directed to deposit 25% of the disputed tax within four weeks of receiving a copy of the order. Upon compliance, the impugned order will be treated as a show cause notice, and the petitioner must submit their objections with supporting documents within the same four-week period. The respondent shall consider these objections and pass a fresh order in accordance with law after providing a reasonable opportunity of hearing. Recovery proceedings are to be kept in abeyance for four weeks. If the deposit or objections are not filed within the stipulated time, the impugned order will stand revived, and the respondent may proceed with recovery. The Court's reasoning was based on the petitioner's submission regarding non-service and technical issues, their willingness to pay a portion of the disputed tax, and the respondent's lack of serious objection, aiming to provide a fair opportunity to the petitioner. The issue of the garnishee notice was also addressed by keeping recovery proceedings in abeyance.
Key Issues
1. Whether the impugned order of assessment dated 02.11.2023 is liable to be quashed on the grounds of non-service of show cause notice and the assessment order on the petitioner, and the inability of the petitioner to access the GSTIN portal for participation in the proceedings? (Question of law and fact, turning on principles of natural justice and procedural fairness under GST law). Petitioner's arguments: The petitioner argued that the assessment order is illegal because it was passed without proper service of notices and the assessment order itself, violating principles of natural justice. They relied on the judgment in M/s.K.Balakrishnan, Balu Cables vs. O/o. the Assistant Commissioner of GST & Central Excise (W.P.(MD)No.11924 of 2024) to support their claim of technical glitches and the need for an opportunity to be heard. They also stated readiness to pay 25% of the disputed tax. Respondent's arguments: The learned Additional Government Pleader for the respondent did not raise any serious objection to the petitioner's request for an opportunity to be heard and to deposit 25% of the disputed tax.
Sections Cited
None explicitly mentioned as being discussed in detail, but the context implies provisions related to assessment, notice, and opportunity of hearing under GST law.
AI-generated summary — verify with the full judgment below
Before: and
The present Writ Petition is filed challenging the impugned order of assessment dated 02.11.2023 relating to the assessment year 2018-2019. 2. The impugned order is challenged on the premise that neither the show cause notices nor the impugned order of assessment has been served on the petitioner and it had been uploaded in the GSTIN portal. It was further submitted that the petitioner was unable to access the GSTIN portal and thus unable to participate in the adjudication proceedings.
The limited issue that arises for consideration in the impugned order is the alleged mismatch between GSTR-7 and GSTR-3B. It is submitted by the learned counsel for the petitioner that if the petitioner is provided with an opportunity, he would be able to explain the alleged discrepancies between GSTR-7 and GSTR-3B.
The learned counsel for the petitioner would place reliance upon the recent judgment of this Court in the case of M/s.K.Balakrishnan, Balu Cables vs. O/o. the Assistant Commissioner of GST & Central Excise in W.P. (MD)No.11924 of 2024 dated 10.06.2024. 2/6 https://www.mhc.tn.gov.in/judis
It was submitted by the learned counsel for the petitioner that with the introduction of GST, there were several technical glitches in the portal and the assessees were also taking time to adapt to the e-mechanism and it was only in view of the same that the petitioner was unable to respond to the above notices and the order of adjudication. It was further submitted that the petitioner is ready and willing to pay 25% of the disputed tax and that he may be granted one final opportunity before the adjudicating authority to put forth their objections to the proposal, to which the learned Additional Government Pleader appearing for the respondent does not have any serious objection.
It is submitted by the learned counsel for the petitioner that a garnishee notice has been issued to the petitioner's employer, although a copy of the same is not enclosed in the typed set of papers as the said notice has not been served to the petitioner. It is further submitted that if any such proceedings have been initiated, the same may be kept in abeyance for a period of four weeks from the date of receipt of a copy of this order, within which, the petitioner would pay 25% of the disputed tax. The same was agreed to by the learned Additional Government Pleader for the respondent. 3/6 https://www.mhc.tn.gov.in/judis
In view thereof, the impugned order is set aside and the petitioner shall deposit 25% of the disputed tax within a period of four (4) weeks from the date of receipt of a copy of this order. On complying with the above condition, the impugned order of assessment shall be treated as show cause notice and the petitioner shall submit its objections within a period of four (4) weeks from the date of receipt of a copy of this order along with supporting documents/material. If any such objections are filed, the same shall be considered by the respondent and orders shall be passed in accordance with law after affording a reasonable opportunity of hearing to the petitioner. Recovery proceedings shall be kept in abeyance for a period of four weeks from the date of receipt of a copy of this order. If the above deposit is not paid or the objections are not filed within the stipulated period, i.e., four weeks from the date of receipt of a copy of this order, the impugned order of assessment shall stand revived and it is open to the respondent to proceed with the recovery proceedings.
Accordingly, the Writ Petition stands disposed of. There shall be no order as to costs. Consequently, connected miscellaneous petitions are closed. 26.09.2024 Index : Yes / No Internet : Yes/ No Lm 4/6 https://www.mhc.tn.gov.in/judis To The Commercial Tax Officer (State), Tuticorin-II Assessment Circle, No.6 R, North Cotton Road, Thoothukudi, Tamil Nadu – 628 001. 5/6 https://www.mhc.tn.gov.in/judis MOHAMMED SHAFFIQ
, J.
Lm
2024 6/6 https://www.mhc.tn.gov.in/judis
Reproduced from the public record of the Madras High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.