Order released without giving opportunity to reply is contrary to the principles of natural justice

[CA Bimal Jain]

The Hon’ble High Court of Madras in the case SUNDARAPANDIAN VERSUS THE STATE TAX OFFICER-1, THE JOINT COMMISSIONER, (ST) (INTELLIGENCE) , STATE TAX OFFICER, (ST) (FAC) , KULITHALAI. - 2024 (8) TMI 833 - MADRAS HIGH COURT held that an order released without giving proper opportunity to reply to the Show Cause Notice (“SCN”) is contrary to principles of natural justice. 

Facts:

Sundarapandian (“the Petitioner”) were served notices vide FORM DRC-01A dated October 26, 2023 and FORM DRC-01 dated November 15, 2023, for the assessment year 2018-19, which was issued by the State Tax Officer (“the Respondent”). The notices were preceded by the Order dated February 12, 2024 (“the Impugned Order”).

The Petitioner contended that the Impugned Order was passed without issuance of the aforementioned notices, hence, it is gross violation of principles of natural justice.

The Respondent submitted that the notices that preceded Impugned Orders were posted on the GST common portal and the Petitioner ought to have participated in the said proceedings. Instead, the Petitioner has chosen to remain mute and has suffered the Impugned Order. It is further submitted that in any event the Petitioner is not without remedy, the Petitioner has an alternative remedy before the appellate authority under Section 107 of the CGST Act.

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

Issue:

Whether the issuing order without any opportunity to file reply against SCN?

Held:

The Hon’ble Madras High Court in SUNDARAPANDIAN VERSUS THE STATE TAX OFFICER-1, THE JOINT COMMISSIONER, (ST) (INTELLIGENCE) , STATE TAX OFFICER, (ST) (FAC) , KULITHALAI. - 2024 (8) TMI 833 - MADRAS HIGH COURT held as under

• Observed that, the Petitioner may have a case on merits as the dispute pertains to difference of turn over reported in FORM GSTR-7 and FORM GSTR-3B. Considering the same, the Impugned Order was set aside and remitted the case to the Respondent to pass fresh order on merits. The Impugned Order, passed for the Assessment Year 2018-19 which stands quashed hereby, shall be treated as addendum to the SCN. The Petitioner shall file a consolidated reply within a period of 30 days from the date of receipt of copy of the order and also deposit 20% of the disputed tax from electronic cash registered.

Our Comments:

In pari materia case, of BHADRISH JAYANTILAL SHETH VERSUS INCOME TAX OFFICER, WARD 34 (1) , KOLKATA & ORS. - 2022 (5) TMI 1662 - CALCUTTA HIGH COURT the Hon’ble Calcutta High Court held that not providing an opportunity to file a reply to the SCN is violation of principle of natural justice. Hence, the case was remanded back to the Assessing Officer for fresh assessment.

 (Author can be reached at [email protected])