2023 (10) TMI 948 - HC - GST

Violation of principles of natural justice - opportunity of hearing not provided - Doctrine of merger - original order does not get merged with the appellate order - appeal dismissed as being beyond the prescribed period of limitation - HELD THAT - From the perusal of the records, it is clear that after the petitioner had sought adjournment, a reminder notice was sent to the petitioner on 10.02.2021 wherein the date by which the reply was to be submitted was indicated as 17.04.2021, however, in the column of date of personal hearing, the time of personal hearing and venue of personal hearing, the words 'NA' were transcribed. From the order impugned passed under section 74 also, it transpires that no opportunity of hearing was granted to the petitioner. The order passed against the petitioner under section 74 is quashed. As the main order has been quashed, the order dated 26.12.2022 also losses its efficacy and is quashed. The respondent no.3 may pass a fresh order after giving an opportunity of hearing in accordance with law. Petition allowed.

Summary

Issues involved:
The issues involved in the judgment are improper description of respondent no.1, dismissal of appeal due to limitation period, lack of opportunity of hearing granted to the petitioner, and the quashing of orders passed under section 74 of the GST Act.

Improper Description of Respondent:
The counsel for the respondent no.1 raised an objection regarding the improper description of the respondent, which was found to be correct. However, it was noted that the outcome of the writ petition would not be affected by this discrepancy.

Dismissal of Appeal Due to Limitation Period:
The petitioner's firm, registered under GST, received a show cause notice and subsequent order under section 74(9) confirming a demand. The petitioner claimed inability to appeal within the prescribed time due to an incurable disease, supported by a medical certificate. The appeal was dismissed for being beyond the limitation period, with the petitioner arguing that the original order should not merge with the appellate order.

Lack of Opportunity of Hearing:
The petitioner contended that no opportunity of hearing was granted before the order under section 74(9) of the GST Act was passed. Records revealed that a reminder notice was sent to the petitioner, but no personal hearing was scheduled. The court found that no opportunity of hearing was indeed granted to the petitioner, leading to the quashing of the order under section 74 and subsequent orders.

Quashing of Orders under Section 74:
Based on the lack of opportunity of hearing granted to the petitioner, the court referred to a previous judgment and allowed the present petition. Citing the mandatory requirement of granting an opportunity of hearing under section 75(4) of the GST Act, the court quashed the order passed against the petitioner under section 74. Consequently, the related orders were also quashed, and the respondent was directed to pass a fresh order after providing an opportunity of hearing in accordance with the law.

Conclusion:
The writ petition was allowed, and the original records were returned to the learned Standing Counsel as per the court's order.