2023 (10) TMI 483 - HC - GST

Violation of principles of natural justice - hearing was granted to the petitioner during the assessment proceedings and during the appellate proceedings or not - HELD THAT - In terms of mandate of Section 75(4) of GST Act, it is incumbent upon the respondents to grant a hearing, which admittedly has not been granted, as the date, venue or time of hearing was not mentioned in the reminder notice sent to the petitioner and thus, the order contained in Annexure - 2 passed under Section 73 of GST Act is clearly in violation of principles of natural justice. As against the appellate order, learned counsel for the petitioner argues that the same is also without consideration or application of mind. He places reliance on a judgment of the Supreme Court in the case of KAJAL DUTTA. VERSUS ASSISTANT COMMISSIONER OF STATE TAX, SURI CHARGE ORS. 2023 (1) TMI 1097 - CALCUTTA HIGH COURT wherein the Supreme Court had the occasion to consider the statutory provisions governing the limitation under Section 107(1) read with 107(4) of GST Act and the Court was of the view that even in the cases where the appeal is filed beyond the condonable period, the Court while exercising the jurisdiction under Article 226 of the Constitution of India can examine the factual circumstances and grant appropriate relief as the appellate remedy is a valuable remedy since an appellate authority can re-appreciate the factual position. The original order suffers from the vice of not following the mandatory provisions under Section 75(4) of GST Act and thus, is clearly contrary to the mandate cast by virtue of Section 75(4) of GST Act and is also in violation of principles of natural justice, thus, it is deemed appropriate to quash both the orders contained in Annexure - 1 2 i.e. 20.02.2023 31.07.2023 and remand the matter to the assessing authority to pass fresh orders after giving an opportunity of hearing to the petitioner. Petition allowed by way of remand.

Summary

Issues involved:
The judgment involves challenging orders passed under Section 73 of the GST Act and the subsequent dismissal of an appeal, focusing on the lack of proper hearing granted to the petitioner during assessment and appellate proceedings.

Challenging Order under Section 73 of GST Act:
The petitioner, a GST-registered entity, received a notice under Section 73 of the GST Act to respond to allegations, followed by a reminder notice with no mention of a hearing date. Despite this, an order was issued against the petitioner without a hearing, leading to a challenge through an appeal that was delayed. The petitioner's delay application was dismissed without clear evidence of consideration. The court found a violation of principles of natural justice due to the lack of a granted hearing, as required by Section 75(4) of the GST Act. The original order was deemed to be in contravention of the Act and principles of natural justice, leading to the quashing of both orders and a remand for fresh orders with a proper hearing opportunity.

Dismissal of Appeal without Consideration:
The petitioner argued that the appellate order was devoid of consideration or application of mind, citing a Supreme Court judgment emphasizing the importance of appellate remedies even in cases of delayed appeals. The petitioner sought condonation of the appeal delay based on justifiable grounds. The court, considering the cited judgment, agreed with the petitioner's argument and ordered the quashing of both orders, emphasizing the need for a fair hearing process as mandated by the GST Act. The writ petition was allowed in favor of the petitioner, and the matter was remanded for fresh orders with proper hearing opportunities.