2021 (1) TMI 311 - HC - Service Tax

Principles of Natural Justice - principal argument of the writ applicant is that without giving any opportunity to even file reply to the show cause notice, and that no opportunity of hearing was given even before passing the impugned order in original - HELD THAT - The writ applicant has been able to make out a strong prima facie case to have an ad interim order in his favour in terms of para 29(c) of the writ application. Let Notice be issued to the respondents, returnable on 8th February 2021.

Summary

Issues:
1. Show cause notice validity and compliance.
2. Opportunity of hearing before passing the final order.
3. Application of moratorium under the Insolvency and Bankruptcy Code, 2016.
4. Legal precedents cited by the petitioner.

Issue 1: Show cause notice validity and compliance:
The High Court noted that a show cause notice was issued to the writ applicant, calling for explanations on various matters related to service tax, interest, and penalties. However, before the applicant could respond, an order was passed by the Commissioner demanding recovery of service tax, interest, and imposing penalties. The petitioner argued that no opportunity to reply to the show cause notice was provided, and the final order was issued prematurely without a hearing.

Issue 2: Opportunity of hearing before passing the final order:
The petitioner contended that the authority passed the final order without allowing the applicant to file a reply to the show cause notice or providing an opportunity for a hearing. The petitioner highlighted that despite fixed dates for a personal hearing, no appearance was made, and the order was issued abruptly. The lack of a hearing before the final order was a crucial point raised by the petitioner.

Issue 3: Application of moratorium under the Insolvency and Bankruptcy Code, 2016:
The petitioner invoked Section 14 of the Insolvency and Bankruptcy Code, 2016, which provides for a moratorium. The argument was made that the order passed after the imposition of the moratorium is legally invalid. The petitioner sought to establish the legal protection provided by the moratorium under the insolvency laws.

Issue 4: Legal precedents cited by the petitioner:
The petitioner relied on two legal decisions, one from the Gauhati High Court and another from the Delhi High Court, to support their arguments regarding the procedural irregularities and the impact of the moratorium under the Insolvency and Bankruptcy Code, 2016. These legal precedents were presented to strengthen the petitioner's case and establish legal grounds for challenging the order passed by the Commissioner.

In conclusion, the High Court found merit in the petitioner's arguments regarding the lack of opportunity for a hearing, the premature issuance of the final order, and the potential impact of the moratorium under the insolvency laws. Notice was issued to the respondents, and an ad-interim order was granted in favor of the petitioner based on the prima facie case presented. The respondents were directed to be served through email for further proceedings.