2021 (9) TMI 1180 - HC - GST

Validity of order for levy of penalty - Principles of natural justice - opportunity of personal hearing provided or not - assessment orders challenged on the only ground that the personal hearing, which is mandated under Section 75 (4) of the Act had not been given to the petitioner - HELD THAT - Under Sub Section 4 of Section 75, it has been mandated that an opportunity of being heard shall be granted, where, if a request is received in writing from a person chargeable with tax or penalty or where any adverse decision is contemplated against such person. In order to meet out this mandatory requirements, whether such an opportunity was given to the petitioner by the respondent is the only question to be answered. As requested by the petitioner, a further time of 15 days was given to the petitioner and a notice was issued to the petitioner from the respondent office on 15.12.2020 inviting him to file objection on or before 29.12.2020 and a personal hearing was also provided to him on 29.12.2020 - even this opportunity was not utilised as he did not appear and file any objection till 29.12.2020. However, one day later, that is, on 30.12.2020, the petitioner appeared and filed objection, where he was given such opportunity of hearing, that was utilised by him and thereafter, the respondent seems to have proceeded to pass the impugned assessment order. The provision, that is, Section 75(4) of the Act, has mandated that, only an opportunity of hearing, that means one opportunity shall be given mandatorily to the Assessee for personal hearing - Such one opportunity had been given, and ultimately, the third opportunity also had been given to him on 30.12.2020, where he was permitted to file objection or reply and personal hearing was also given to him was utilised. This case cannot fall under the category of no opportunity of personal hearing was given, and hence this Court feel that, it cannot be treated that the respondent has violated the mandatory provisions contained in Section 75(4) of the Act - Petition dismissed.

Summary

Issues:
Challenge to assessment orders for four assessment years due to lack of personal hearing as mandated under Section 75(4) of the Act.

Analysis:
1. The writ petitions challenge assessment orders for four assessment years (2017-18 to 2020-21) due to the absence of personal hearing, as required by Section 75(4) of the Act. The petitioner asserts that despite submitting documents and requesting a personal hearing, the orders were passed without granting the opportunity for a personal hearing.

2. The petitioner's counsel argued that the petitioner was directed to file documents and given a specific date for personal hearing. Although the petitioner missed the initial date due to unavoidable reasons, they appeared the next day with detailed objections and a request for a personal hearing. The impugned orders were passed without providing the mandatory personal hearing, leading to the filing of the writ petitions.

3. The Government Advocate representing the respondent contended that multiple opportunities for personal hearings were provided to the petitioner, as evidenced by the assessment officer's findings. The petitioner failed to utilize these opportunities effectively, and the final hearing on 30.12.2020 was duly conducted before passing the impugned orders.

4. The court analyzed Section 75(4) of the Act, which mandates granting an opportunity of hearing upon a written request from the person chargeable with tax or penalty or in case of an adverse decision. The court noted that the petitioner was given multiple opportunities for personal hearing, with the final hearing on 30.12.2020 being utilized by the petitioner.

5. The petitioner argued for a minimum of three opportunities for personal hearings, citing the proviso to Sub Section 5 of Section 75. However, the court clarified that the provision only limits the number of adjournments to three times, not mandating a minimum of three hearings. The court rejected the petitioner's contention that a violation of Section 75(4) occurred due to insufficient opportunities for personal hearings.

6. Ultimately, the court dismissed the writ petitions, stating that the respondent had not violated the mandatory provisions of Section 75(4) by providing adequate opportunities for personal hearings. The court highlighted the availability of the appeal process under Section 107 of the Act for challenging the assessment orders within 90 days, advising the petitioner to pursue the appeal route if desired.