Personal hearing cannot be denied without confirming from assessee

[CA Bimal Jain]

The Hon’ble Allahabad High Court in the case of M/S MOHINI TRADERS VERSUS STATE OF U.P. AND ANOTHER - 2023 (6) TMI 531 - ALLAHABAD HIGH COURT had set aside the order and held that assessee is not required to request for opportunity of personal hearing since, it is a compulsion on the Assessing Authority to provide opportunity of being heard before passing an adverse order.

Facts:

Mohini Traders (“the Petitioner”) was served a Show Cause Notice dated May 20, 2022 (“the SCN”) by revenue department seeking reply within 30 days.

The Revenue department passed an order dated October 21, 2022 (“the Impugned order”) for the tax period April 2018, whereby demand in excess to INR 5 crores has been raised against the Petitioner.

The Assessing Authority had at that stage itself chosen to not give any opportunity of hearing to the petitioner by mentioning "NA" against column description "Date of personal hearing". Similar endorsements were made against the columns for "Time of personal hearing" and "Venue where personal hearing will be held". Thus, the Petitioner contended that it was completely denied opportunity of oral hearing before the revenue department.

Therefore, the revenue department contended that the Petitioner denied opportunity of hearing because he had tick marked the option 'No' against the option for personal hearing in the reply to the SCN and submitted through online mode, and thus the Petitioner cannot turn around to claim any error in the Impugned order passed consequently.

The Petitioner relied upon a case of BHARAT MINT AND ALLIED CHEMICALS VERSUS COMMISSIONER COMMERCIAL TAX AND 2 OTHERS - 2022 (3) TMI 492 - ALLAHABAD HIGH COURT, and on Section 75(4) of the Central Goods and Services Tax Act (“the CGST Act”) and contended that the revenue department was bound to afford opportunity of personal hearing to the Petitioner before he may have passed an adverse assessment order.

Issue:

Whether the Revenue can issue SCN without offering opportunity of being heard?

Held:

The Hon’ble Allahabad High Court in M/S MOHINI TRADERS VERSUS STATE OF U.P. AND ANOTHER - 2023 (6) TMI 531 - ALLAHABAD HIGH COURT held as under:

• Noted that, the stand of the Petitioner may remain unclear unless minimal opportunity of hearing is first granted.
• Directed to issue a fresh SCN to the Petitioner within a period of two weeks.
• Observed that, opportunity of being heard is a must and the principle of natural justice would commend to the Court to bind the authorities to always ensure and provide such opportunity of hearing.
• Held that, not only such opportunity would ensure observance of rules of natural of justice but it would allow the authority to pass appropriate and reasoned order as may serve the interest of justice and allow a better appreciation to arise at the appeal stage.
• Set aside the Impugned Order and remanded back the matter to Adjudicating Authority.

Relevant Provision:

Section 75(4) of the CGST Act:

“General provisions relating to determination of tax

75(4) An opportunity of hearing shall be granted where a request is received in writing from the person chargeable with tax or penalty, or where any adverse decision is contemplated against such person.”

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