2023 (9) TMI 1357 - HC - GST

Rejection of benefit of Input Tax Credit (ITC) - petitioner assails the impugned order primarily on the ground that the same has been passed in violation of the principles of natural justice - an inadvertent error of one of the suppliers in not mentioning the GSTIN number of the petitioner in the invoice - Mismatch of credit in Form GSTR-3B and the same was not reflected in FORM GSTR-2A. - HELD THAT - Notice of personal hearing of the appeal was issued several times, but petition failed to appeal before the appellate authorities - Being left with no option, the respondent no.2 Commissioner (Appeals) proceeded to dispose of the appeal ex parte on the basis of the available records. One of the facets of the principle of natural justice is the concept of audi alteram partem or the rule of fair hearing. There can be no precise definition or strait-jacket formula which is to be followed in all cases. Notice of hearing is regarded as the minimum obligatory condition in such cases. The underlying principle which is to be followed in such cases is one of fairness. The petitioner had been given notice of personal hearing and repeated opportunities i.e. on 11 August, 2022, 1 September, 2022, 19 October, 2022 and 9 November, 2022 respectively. However, the petitioner chose not to appear leaving the respondent no.2 with no other option but to pass an ex parte order. The reconciliation process which the respondent no.2 has failed to do on the grounds of documentary evidence not being available is prima facie not tenable. Any mismatch ought to have been attempted to be ascertained from the records of the respondent authorities and their online portal. Moreover, the respondent authorities have not even adverted to the Circular dated 27 December, 2022 which inter alia clarify the approach to be followed by the Department in cases where the supplier had wrongly reported the said supply as B2C instead of B2B in FORM GSTR-1 due to which the relevant supply was not get reflected. Similarly, the declaration of the wrong GSTIN of the recipient in the FORM GSTR-1 ought to have been dealt with in terms of the said Circular. There is also absence of reasons in the impugned order in rejecting the contentions raised by the appellant. The impugned order is unsustainable and set aside - appellant is directed to deposit twenty (20) per cent of the tax in dispute in addition to the amount paid under sub-section (6) of section 107 of the Act. Upon such payment being made within 7 days from the date of passing of this order - Matter restored back for fresh adjudication.

Summary

Issues:
The case involves the dismissal of an appeal under Section 107 of the West Bengal Goods and Services Tax Act, 2017 (WBGST) and the corresponding sections of the Central Goods and Service Tax Act, 2017 (CGST). The petitioner challenges the order rejecting the claim for Input Tax Credit (ITC) and imposing penalties.

Principles of Natural Justice:
The petitioner challenges the order on the grounds of violation of natural justice. The petitioner argues that Circular No. 183/15/2022-GST was not considered by the authorities. The petitioner contends that the impugned order was passed without considering the grounds of appeal and the documentary evidence. The petitioner asserts that the mismatch of ITC claimed and not reflected in FORM GSTR-2A could have been rectified by the authorities. The petitioner relies on legal precedents to support their contentions.

Fair Hearing and Ex Parte Order:
The respondent authorities argue that the petitioner deliberately chose not to appear despite repeated opportunities provided by the authorities. The authorities issued notices of personal hearing and granted adjournments, but the petitioner remained unrepresented. The authorities proceeded to dispose of the appeal ex parte due to the petitioner's absence. The authorities maintain that the principles of natural justice were not violated as the petitioner had multiple chances to participate in the proceedings.

Reconciliation and Documentation:
The respondent no. 2, while disposing of the appeal ex parte, failed to consider the available records and deal with the appeal on merits. The reconciliation process was not adequately conducted, and the documentary evidence was not properly evaluated. The authorities did not take into account the Circular dated 27 December, 2022, which clarifies the approach to be followed in cases of reporting errors in FORM GSTR-1. The impugned order lacks reasons for rejecting the contentions raised by the appellant.

Decision and Directions:
The Court set aside the impugned order and directed the appellant to deposit 20% of the tax in dispute within 7 days. Upon payment, the authorities are instructed to afford a fresh hearing to the petitioner and dispose of the appeal in accordance with the law. Failure to make the payment may result in recovery proceedings. The Court clarified that any findings on the merits of the case are prima facie and the Appellate Authority is free to reconsider the appeal without being influenced by previous observations.