Opportunity should be granted to the Assessee to be heard in person

[CA Bimal Jain]

The Hon’ble Delhi High Court in the case of M/S SHREE PADMA INDUSTRIES VERSUS UNION OF INDIA & ORS. - 2024 (5) TMI 1037 - DELHI HIGH COURT remitted back the matter and it was held that that the one opportunity of being heard should be granted to the Assessee.

Facts:

M/s. Shree Padma Industries (“the Petitioner”) was served a Show Cause Notice dated September 29, 2023 (“the Impugned SCN”) issued in reference to FORM GSTR-01 which stated that working of excess ITC under Section 16(2)(c) of the Central Goods and Services Tax Act, 2017 (“the CGST Act”) was appended to the Notices as Annexure-B and had given reasons under separate headings i.e. excess claim of ITC and scrutiny of ITC availed. The Proper Officer (“the Respondent”) in the Impugned SCN demanded INR 9,04,200/- including the penalty.

The Petitioner requested to provide the tabular chart annexed in Annexure B and further activate the GST Portal to enable the Petitioner to file the reply to the Impugned SCN.

However, an Order dated December 12, 2023, was passed (“the Impugned Order”) whereby the demand proposed in the Impugned SCN was disposed of. It stated that the Noticee had neither filed a reply/explanation within the stipulated period nor appeared for the Personal Hearing before the Respondent on the given date and time. Further, another opportunity was provided to submit reply and for the sake of natural justice opportunity for a Personal Hearing was also accorded to the Noticee by issuing "REMINDER" through the GST portal. Now, since no reply/explanation has been received from the Noticee despite sufficient and repeated opportunities, it indicated that the Noticee has nothing to submit in the matter.

In view of the aforesaid circumstances, the Respondent was left with no other option but to decide the matter ex-parte, in accordance with the provisions of the CGST Act, as per discrepancies already conveyed through the Impugned SCN. The Respondent opined that despite providing another opportunity, neither an online reply was filed nor the Petitioner appeared in person or through an authorized representative.

Hence, aggrieved by the Impugned Order, the Petitioner filed the present writ petition.

Issue:

Whether an opportunity of personal hearing should be granted to the Assessee?

Held: 

The Hon’ble Delhi High Court in M/S SHREE PADMA INDUSTRIES VERSUS UNION OF INDIA & ORS. - 2024 (5) TMI 1037 - DELHI HIGH COURT held as under:

• Observed that, the Impugned Notice specifically stated that there was an Annexure - B to the Impugned Notice. The Petitioner claimed to have requested the Respondent for a copy of Annexure - B to enable it to file a reply. Neither copy of Annexure B was supplied nor was the Petitioner informed that there is no Annexure-B. It is only for the first time in these proceedings that the Respondents state that there is no Annexure-B and the table contained in the Impugned SCN contains all the details.
• Noted that, the only reason for passing the Impugned Order is that the Petitioner had not filed any reply to the Impugned SCN. In view of the stand of the Respondents that there is no Annexure-B, in view of the Hon’ble Delhi Court one opportunity needs to be granted to the Petitioner to respond to the Impugned SCN.
• Held that, Petitioner shall file a further reply to the Impugned SCN within two weeks from today. Thereafter, the Respondent shall re-adjudicate the Impugned SCN after giving an opportunity of personal hearing to the Petitioner and shall pass a fresh speaking order in accordance with law within the period prescribed under Section 75 (3) of the Act. Hence, the Impugned Order.

Our Comments:

Section 75 of the CGST Act talks about “General provisions relating to determination of tax”. Section 75(4) of the CGST Act states that 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.

The Hon’ble Gujarat High Court in ALKEM LABORATORIES LIMITED VERSUS UNION OF INDIA - 2021 (2) TMI 433 - GUJARAT HIGH COURT quashed and set aside the order on the ground that no opportunity of a personal hearing was given and held that one opportunity shall be given to appear and to defend the case.

(Author can be reached at [email protected])