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TMI Blog2024 (2) TMI 188X X X X Extracts X X X X X X X X Extracts X X X X ..... Consequential relief to follow. The Respondent No. 2 is directed to grant an opportunity of personal hearing to the petitioner and thereafter pass a reasoned order in accordance with the law within a period of two months from date. This writ petition is, accordingly, allowed. - Hon ble Justice Shekhar B. Saraf For the Petitioner : Pranjal Shukla, Advocate For the Respondent : Ravi Shanker Pandey, Additional Chief Standing Counsel ORDER 1. Heard counsel appearing on behalf of the parties. 2. This is a writ petition under Article 226 of the Constitution of India wherein the petitioner M/S K.J. Enterprises is aggrieved by the order dated September 26, 2022, passed by the Additional Commissioner, Grade 2, (Appeals 1st), Commercial Tax, Agra (hereinafter referred to as the Respondent No. 2 ). 3. Factual matrix of the instant case is provided below: a. Petitioner is a proprietorship firm carrying the business of job work of scrap, selling, and purchasing of iron machinery parts and hardware. b. The petitioner, during the month of March 2018, purchased inputs from different registered firms, in which ITC claim was made as per the Uttar Pradesh G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty, an opportunity of personal hearing must be granted if any adverse decision is contemplated against such person. 6. When the word or is used in a statute, it serves as a disjunctive conjunction, indicating two or more alternatives. Each option presented is to be considered independently. It is crucial to recognize that the disjunctive nature of or precludes its interpretation as a conjunctive conjunction, such as and . Unlike, and , which implies a requirement for the simultaneous fulfilment of multiple conditions, or allows for flexibility and choice by permitting compliance with any one of the alternatives presented. Attempting to read or as and in a statute would fundamentally alter its meaning and undermine the legislative intent behind its use. Such an interpretation would impose stricter criteria or conditions than intended by the statute, potentially leading to absurd or unreasonable outcomes. 7. Courts have consistently upheld the disjunctive nature of or in statutory interpretation, adhering to the principle of giving effect to the plain and ordinary meaning of the language used in the statutes. This principle, known as the plain meaning rule or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing factors directly to the decision-maker. It is a vital safeguard against arbitrary or unjust decisions. The inclusion of or'' in Section 75(4) of the UPGST Act, 2017, emphasizes the dual nature of the obligation to provide a personal hearing, accommodating both proactive requests from individuals seeking to defend their interests and reactive responses to adverse orders contemplated by tax authorities. In either scenario, the statutory mandate remains clear: the individual must be afforded an opportunity for personal hearing before any final determination is made regarding tax or penalty imposition. Moreover, the statutory mandate for personal hearing reflects an acknowledgement of the complex and multifaceted nature of tax and penalty determinations, which often involve intricate legal and factual considerations. Personal hearing provides a forum for nuanced discussion and exploration of these complexities, enabling decision-makers to make well-informed and equitable decisions based on a comprehensive understanding of the circumstances at hand. 10. A Division Bench of this Court in Bharat Mint and Allied Chemicals v. Commissioner Commercial Tax and Others reported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d order and perusal thereof shows that no opportunity of hearing as contemplated under Section 75(4) of the Act, 2017 was not afforded to the petitioner. Thus, there being patent breach of principles of natural justice, the present writ petition is maintainable against the impugned order. 11. The view taken in Bharat Mint and Allied Chemicals (supra) was reiterated by another Division Bench of this Court in Mohini Traders v. State of U.P. and Others reported in MANU/UP/2440/2023 . Relevant paragraphs have been extracted below: 7. We find ourselves in complete agreement with the view taken by the coordinate bench in Bharat Mint Allied Chemicals (supra). Once it has been laid down by way of a principle of law that a person/assessee is not required to request for opportunity of personal hearing and it remained mandatory upon the Assessing Authority to afford such opportunity before passing an adverse order, the fact that the petitioner may have signified 'No' in the column meant to mark the assessee's choice to avail personal hearing, would bear no legal consequence. 8. Even otherwise in the context of an assessment order creating heavy civil liabil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng before taking decision is necessary. Relevant paragraphs have been extracted below: 33. In his separate opinion, concurring on this fundamental issue, K. Ramaswamy, J. echoed the aforesaid sentiments in the following words : (ECIL case [(1993) 4 SCC 727 : 1993 SCC (L S) 1184 : (1993) 25 ATC 704] , SCC p. 773, para 61) 61. It is now settled law that the proceedings must be just, fair and reasonable and negation thereof offends Articles 14 and 21. It is well-settled law that the principles of natural justice are integral part of Article 14. No decision prejudicial to a party should be taken without affording an opportunity or supplying the material which is the basis for the decision. The enquiry report constitutes fresh material which has great persuasive force or effect on the mind of the disciplinary authority. The supply of the report along with the final order is like a post-mortem certificate with putrefying odour. The failure to supply copy thereof to the delinquent would be unfair procedure offending not only Articles 14, 21 and 311(2) of the Constitution, but also, the principles of natural justice. 34. Likewise, in C.B. Gautam v. Union of India [(1993) 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be placed in a straitjacket; its rules are not embodied and they do vary from case to case and from one fact-situation to another. All that has to be seen is that no adverse civil consequences are allowed to ensue before one is put on notice that the consequence would follow if he would not take care of the lapse, because of which the action as made known is contemplated. No particular form of notice is the demand of law. All will depend on facts and circumstances of the case. 14. From a bare reading of the order dated August 10, 2021 passed by the Respondent No. 3 it is palpably clear that no opportunity of personal hearing was afforded by the Respondent No. 3 to the petitioner, which is a statutory obligation under Section 75(4) of the UPGST Act, 2017. Furthermore, the Respondent No. 2, while dismissing the appeal failed to correct this glaring impropriety in its order dated September 26, 2022. These orders cannot be allowed to pass through the legislative barriers of natural justice, erected to safeguard individual rights and prevent abuse of power. 15. In light of the aforesaid discussion, let there be a writ of certiorari issued against the order dated August 10, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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