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TMI Blog2023 (1) TMI 916X X X X Extracts X X X X X X X X Extracts X X X X ..... providing the opportunity of personal hearing when any adverse decision is contemplated, even without any request for personal hearing on the part of the party concerned. The impugned order of assessment with all consequential proceedings are set aside - petition allowed. - R/SPECIAL CIVIL APPLICATION NO. 17506 of 2022 - - - Dated:- 12-1-2023 - HONOURABLE MS. JUSTICE SONIA GOKANI AND HONOURABLE MR. JUSTICE SANDEEP N. BHATT Appearance: Mr. Karankumar J Sukawala (10263) for the Petitioner(s) No. 1,2 Mr. Mukund Kumar Chouhan (10259) for the Petitioner(s) No. 1,2 For the Respondent(s) No. 1 Mr Siddharth Rami, AGP for the Respondent(s) No. 1,2 ORAL ORDER (PER : HONOURABLE MS. JUSTICE SONIA GOKANI) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icial to the petitioner, with the following prayers:- (A) that this Hon'ble Court be pleased to issue a writ of Certiorari or any other writ, order or direction under Article 226 of The constitution of India after going the validity and legality there of quash the order DRC 07 Reference No. ZD2404220100580 dated 14/04/2022 (Annexure-B) issued by Respondent No. 2; (B) that this Hon'ble Court be pleased to issue a writ of Certiorari or any other appropriate writ, order or direction under Article 226 of the constitution of India after going into the validity legality thereof, direct re-adjudication of the Show Cause Notice Form GST DRC-01 Reference No. ZD2402220082451 dated 14/02/2022 (Annexure - A) after following the Princi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on providing the opportunity of personal hearing when any adverse decision is contemplated, even without any request for personal hearing on the part of the party concerned. 5.1. In case of Graziano Transmissioni India Pvt. Ltd. (supra), the Court held and observed thus:- 11. At the outset, we would like to reproduce Section 75 of the CGST Act, 2017, which is as under: Section 75 : General provisions relating to determination of tax. (1) Where the service of notice or issuance of order is stayed by an order of a court or Appellate Tribunal, the period of such stay shall be excluded in computing the period specified in sub-sections (2) and (10) of section 73 or subsections (2) and (10) of section 74, as the case ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be confirmed on the grounds other than the grounds specified in the notice. (8) Where the Appellate Authority or Appellate Tribunal or court modifies the amount of tax determined by the proper officer, the amount of interest and penalty shall stand modified accordingly, taking into account the amount of tax so modified. (9) The interest on the tax short paid or not paid shall be payable whether or not specified in the order determining the tax liability. (10) The adjudication proceedings shall be deemed to be concluded, if the order is not issued within three years as provided for in sub-section (10) of section 73 or within five years as provided for in sub-section (10) of section 74. (11) An issue on which the Appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rgeable with tax or penalty or where any adverse decision is contemplated against such person. 13. The stand on the part of the Department is that the Online Portal mode was chosen by the petitioners, which had resulted in the entire matter having been proceeded Online. The opportunity of hearing was not granted since the same was not requested for. However, while so arguing, the provision of Section 75(4) has been missed out. Even without any request having been made on the part of the party concerned, when any adverse decision is contemplated, personal hearing is a must. Hence, the same is missing in the instant case and the request on the part of the petitioners is to remand the matter by directing the respondents to consider the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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