Rajeev Kumar vs. The Principal Commissioner Of Central Goods And Service Tax
Original PDF →Facts
The petitioner, Rajeev Kumar, a proprietorship firm engaged in civil contract work, filed a writ petition challenging an Order-in-Original (OIO) dated 07.02.2023 passed by the Additional Commissioner, GST and CX, Ranchi. The OIO confirmed a demand raised in a show cause notice (SCN) dated 24.09.2021 for the financial year 2016-17. The petitioner claimed that no service tax was payable due to Notification No. 25/2012-ST. The petitioner alleged that the adjudicating authority violated principles of natural justice by not considering their reply submitted on 13.09.2021 and passing the OIO mechanically. The petitioner also sought to quash the SCN and requested a fresh order considering their submissions. The respondents argued that the writ petition was not maintainable due to the alternative remedy available and that the petitioner failed to file a reply to the SCN or attend personal hearings.
Held
The Court held that the petitioner's contention regarding the non-consideration of their reply dated 13.09.2021 was misplaced. Upon perusal, the Court found that the said reply was given at the enquiry stage and was sent to the Superintendent, Range-1, Div-II, Bokaro, pertaining to pre-SCN queries, not the SCN itself. The Court noted that the petitioner admittedly did not reply to the SCN. Furthermore, the Court found that the adjudicating authority had provided ample opportunities to the petitioner, with personal hearing dates fixed four times (27.10.2022, 25.11.2022, 07.12.2022, and 04.01.2023). Despite notices being sent to the petitioner's registered address and email ID, the petitioner failed to respond or appear. Therefore, the Court concluded that the principle of natural justice was not violated and the adjudicating authority committed no error in passing the OIO. The Court also held that the writ application was not maintainable due to the efficacious alternative remedy available under the Act. The ratio decidendi is that a writ petition is not maintainable when there is an alternative statutory remedy and the petitioner has failed to avail it or comply with procedural requirements like responding to a show cause notice and attending personal hearings.
Key Issues
1. Whether the adjudicating authority committed an error by not considering the petitioner's reply dated 13.09.2021 and the supporting documents in passing the Order-in-Original, thereby violating the principles of natural justice, as contended by the petitioner under Article 226 of the Constitution of India? 2. Whether the writ application is maintainable in light of the alternative remedy available under the Goods and Services Tax Act, 2017, as argued by the respondents? Petitioner's Contentions: The petitioner argued that the respondent No. 2 erred in not considering their reply and documents submitted on 13.09.2021, leading to a violation of the principles of natural justice. They relied on judgments such as Anil Kumar Vs. Presiding Officer, Whirlpool Corporation Vs. Registrar of Trade Marks, and ABL International Ltd. Vs. Export Credit Corporation to support the maintainability of the writ petition. The petitioner also attempted to argue the merits of the case. Respondents' Contentions: The respondents raised a preliminary objection regarding the maintainability of the writ application, citing the existence of an alternative remedy. They contended that the petitioner was given ample opportunity but failed to file a reply to the SCN or attend the personal hearing, thus rejecting the petitioner's claim of non-compliance with natural justice. They argued that the writ application should be dismissed.
Sections Cited
Notification No.25/2012-ST
AI-generated summary — verify with the full judgment below
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(T) No. 1617 of 2023 Rajeev Kumar
..… Petitioner
Versus
The Principal Commissioner of Central Goods and Service Tax, having its office at 5A Central Revenue Building, Main Road, Ranchi.
The Additional Commissioner of Central GST & CX, Sub- Commissioner , having its office at 5A Central Revenue Building, Main Road, Ranchi. .....Respondents
--------- CORAM: Hon’ble Mr. Justice Rongon Mukhopadhyay
Hon’ble Mr. Justice Deepak Roshan
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For the Petitioner : Mr. Ajay Kumar Rastogi, Adv.
Mr. Mahendra Kr. Choudhary, Adv.
Mr. Parijat Saurav, Adv. For the Res. Resp. : Mr. P.A.S.Pati, Adv.
Ms. Ranjana Mukherjee, Adv.
---------
CAV on :-01.09.2023
Pronounced on:-12/09/2023 Per Deepak Roshan, J. The instant application has been preferred for the following reliefs:- (i) For issuance of a writ in the nature of certiorari or any other appropriate writ or direction for setting aside the Order-in-Original No.20/S.Tax/ADC/RAN/2023 dated 07.02.2023 (Annecxure-5), passed by the Additional Commissioner, GST and CX, Sub-Commissionerate, Ranchi, wherein the said adjudicating authority in complete violation of principle of natural justice and without considering the reply of the petitioner submitted on 13.09.2021 (Annexure-2 series) and even without taking into account the same, in a quite mechanical and stereo type manner confirmed the demand as made in the alleged Demand-cum-Notice to show cause dated 24.09.2021(Annexure-3). (ii) For quashing and setting aside the demand-cum- notice to show cause dated 24.09.2021 (Annexure-3) issued by the Respondent No.2, whereby and whereunder the said show cause the petitioner as to why the service tax including interest and penalties, as mentioned therein, should not be imposed upon the petitioner, for the financial year 2016-17. (iii) For a direction upon the adjudicating authority to pass a fresh order, after taking into account the submissions made and documents submitted by the petitioner vide e-mail dated 13.09.2021 (Annexure-2 series).
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The brief fact of the case is that the petitioner is a proprietorship firm and is engaged in business of civil contract work and is providing civil construction contractor work to the government offices in the State of Jharkhand and Bihar. During the period 2016-17, the petitioner executed various work with regard to the construction, repair, maintenance and road.
The claim of the petitioner is that no service tax is payable in view of the Sl. No.13 of notification No.25/2012- ST dated 20.06.2012. The further case of the petitioner is that in the month of September, 2021 he received a call from the office of respondent No.2 to inform that an investigation by the department has been initiated in the case of the petitioner regarding allegation of non- registration under service tax and non-payment of service tax for the Financial Year 2016-17. As per the petitioner it was also informed that several notices have been issued i.e., on 24.06.2021, 26.07.2021 and 02.08.2021, however due to COVID restriction, the petitioner in reply to notice dated 02.08.2021 through e-mail dated 13.09.2021 sent his written submission with supporting documents to the office of the respondent No.
Thereafter, demand-cum-show cause notice was issued on 24.09.2021 which was sent through e-mail to the petitioner. The petitioner immediately contacted through phone and informed that reply to the allegation in the Show Cause Notice (hereinafter referred to as "SCN") dated 24.09.2021 was already replied by the petitioner.
Subsequently, after a long gap, all of a sudden respondent no.2 issued date of personal hearing fixing the date on 04.01.2023 but the petitioner could not check his
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e-mail on time as he was not in habit to check e-mail daily and could not attend the date of hearing. Ultimately the impugned Order in Original (OIO) was passed.
Learned counsel for the petitioner submits that the respondent no.2 has erred in not considering the reply and the documents of the petitioner already submitted on 13.09.2021 (Annexure-2, 2/1, 2/2) in reply to the allegation in respect of which the impugned OIO dated 07.02.2023 (Annexure-5) has been passed. Notice (hereinafter referred to as "SCN") or attend the personal hearing intimated to him. As such, the grievances of the petitioner that principle of natural justice is not complied in the instant case is liable to be rejected and since the petitioner is having alternative remedy under the Act, the instant writ application should be dismissed.
Having heard learned counsel for the parties and after going through the averments made in the respective affidavits and the documents annexed therein and also the impugned Order-in-Original, it transpires that no reply to 4
the “SCN” was ever submitted by the petitioner. Even the date of personal hearing was fixed four times i.e., on 27.10.2022, 25.11.2022, 07.12.2022 and 04.01.2023, however, the petitioner did not respond to the same.
The petitioner referred Annexure-2, 2/1 and 2/2 that he has replied to the notice as such the same should have been considered as reply to SCN but after perusing the said Annexure it appears that the said reply was given at the stage of enquiry. From bare perusal it appears that the same was sent to the Superintendent, Range-1, Div-II, Bokaro; however, those were pre SCN queries made by the Range Officer but, admittedly; the petitioner did not reply to the SCN.
It is further evident that the Assessee was given ample opportunity to appear before the adjudicating authority but he failed to do so. The letters of personal hearing were issued to him on the address “M/s Rajeev Kumar, Lukiya Petarwar, Bokaro Steel City, 827001” provided by petitioner-assessee in their GST registration but the letters were returned undelivered. It further transpires that the letters were also sent to the assessee through e-mail ID i.e. rajeevkumar020180@gamil.com which was available to the department but the Assessee did not respond to the said letters. Thus, the contention of the Assessee that principle of natural justice has not been complied is misplaced and misconceived and without any basis. As a matter of fact, in para-9 and 10 of the impugned Order-in-Original, the adjudicating authority has clearly stated giving details of opportunity provided to the Assessee. As such the contention of non-fulfillment of natural justice is not sustainable in the background of this case.
The case laws relied upon by the petitioner is also 5
not applicable for the sole reason that admittedly after issuance of SCN the petitioner did not respond to the SCN and even did not appear on any of the date of personal hearing fixed by the department i.e., 27.10.2022, 25.11.2022, 07.11.2022 and 04.01.2023. 7. Accordingly, we are of the considered opinion that no error has been committed by the adjudicating authority in passing the impugned Order-in-Original, inasmuch as, enough opportunities were provided to the petitioner by issuing SCN and also fixing date of personal hearing for four times; but the petitioner did not respond to either of them.
Having regard to the aforesaid discussions and admitted position with regard to non-submission of reply to the SCN, we failed to appreciate the contention of the petitioner that principle of natural justice has not been complied in the instant case. Since there is efficacious alternative remedy provided in the Act itself, we hold that the instant writ application is not maintainable.
As a result, the instant application stands dismissed. Pending I.A., if any, is also closed.
(Rongon Mukhopadhyay, J.)
(Deepak Roshan, J.)
Fahim/- AFR-
Reproduced from the public record of the Jharkhand High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.