2021 (10) TMI 1161 - HC - GST

Violation of the principles of natural justice - opportunity of personal hearing not provided - petitioner has not given any reply to the SCN - HELD THAT - It is a fact that the Assistant Commissioner, Aruppukottai, by proceeding dated 21.05.2019, has issued a show cause notice and a copy of the same has been filed by the petitioner in this petition. This fact has been accepted by the respondent and a copy of the said notice has also been filed by the learned Government Advocate. The said notice has been responded by the petitioner assessee by reply dated 08.10.2020, with documents - the petitioner has given a reply once again on 14.10.2020 and the said reply was submitted to the respondent Assessment Officer in person and he having received the same has acknowledged by putting his signature and date and this is the evidence from the photocopy of the same filed in the typed set of documents, where the signature of the Assessment Officer can be compared with the signature in the impugned order. Therefore, prima facie, the stand taken by the petitioner has to be accepted. The rule states that show cause notice in DRC-01 Form under Rule 142(1) can be sent through online, but in this case, before such DRC-01 notice sent through online, already a detailed show cause notice had been given, which had been responded towards both the authorities ie., the erstwhile authority as well as the present authority, ie., the Assessment Officer, since they had issued notice one time each and both the notices has been responded promptly by the petitioner - the statement made by the Assessment Officer in the impugned order dated 18.11.2020, as if the petitioner has not replied to DRC-01 notice is a total non-application of mind, as the very detailed reply having been received by the respondent just 5 days prior to the said DRC-01 notice, the said reason ought not to have been stated by the respondent in the impugned order. Therefore, on that ground, this Court feels that the impugned order can very well be interfered with. The matter is remanded to the respondent / Assessment Officer for reconsidering the same - Petition allowed by way of remand.

Summary

Issues:
1. Challenge to assessment order under GST Act
2. Allegation of non-consideration of replies to show cause notices
3. Interpretation of Rule 142(1) regarding online transmission of notices

Analysis:
1. The petitioner, an electroplates manufacturing unit under Tamil Nadu GST Act, challenged an assessment order dated 18.11.2020 for allegedly being illegal, arbitrary, and in violation of natural justice principles. The petitioner sought a fresh assessment order considering their replies to show cause notices and a personal hearing opportunity as per Section 75(4) of the Act.

2. The petitioner responded to a show cause notice from the Assistant Commissioner on 21.05.2019 regarding excess ITC availed. Despite submitting a detailed reply on 08.10.2020, another notice was issued on 21.02.2020. The impugned assessment order claimed non-receipt of replies, leading to the petitioner's grievance. The petitioner contended that both replies were submitted, with the last one acknowledged by the Assessment Officer, contradicting the assessment order's assertion.

3. The respondent argued that an online notice in Form DRC-01 under Rule 142(1) was sent on 19.10.2020, alleging non-response and justifying the assessment order. However, the court noted that prior detailed replies were submitted to both authorities promptly. Despite the subsequent DRC-01 notice, the respondent should have considered the earlier reply dated 14.10.2020, received just before the online notice. The court found the respondent's reasoning in the impugned order regarding non-reply to DRC-01 notice flawed, indicating a lack of proper consideration.

4. The court, after considering submissions, directed the quashing of the impugned order and remanded the matter to the Assessment Officer for reconsideration. The court instructed the consideration of both replies submitted by the petitioner and the provision of a personal hearing if needed. The respondent was allowed to proceed with final assessment orders post the reconsideration, emphasizing a fair opportunity for the petitioner. The writ petition was disposed of with no costs awarded, and connected miscellaneous petitions were closed.