Rafiqul Hasan Vs State of West Bengal & Ors. (Calcutta High Court)
Summary: In Rafiqul Hasan Vs State of West Bengal & Ors., the Calcutta High Court considered a challenge to an adjudication order under Section 73 of the GST Act for FY 2018-2019. A show-cause notice in Form GST DRC-01 was served on 19 December 2023, with a reply deadline of 19 January 2024 and personal hearing on 11 January 2024. Although the petitioner’s representative appeared at the hearing, the petitioner subsequently filed his reply on 9 March 2024, which was sent by Speed Post on 11 March 2024. The adjudication order was passed on 20 March 2024, but the Court noted that the order contained both 20 March 2024 and 19 December 2023 as dates, while its annexure was also dated 19 December 2023. The Court therefore found that the respondents may not have considered the petitioner’s reply before passing the order. Referring to Section 75(4), the Court held that if an adverse order was contemplated after receipt of the reply, the petitioner ought to have been given an opportunity of hearing. The Court accordingly granted another personal hearing upon payment of 10% of the disputed tax, in addition to the amounts already recovered and deposited for the appeal, and directed the respondents to pass a fresh adjudicating order within four weeks. The original order would revive if the petitioner failed to cooperate. Principles of Natural Justice & Mandatory Right to Personal Hearing under GST
Appellant was represented by: Himangshu Kumar Ray
FULL TEXT OF THE JUDGMENT/ORDER OF CALCUTTA HIGH COURT
1. The petitioner was served with a show-cause notice in Form GST DRC — 01 on 19th December, 2023 for the financial year 2018-2019. The said show-cause notice required the petitioner to give a reply to the same by 19th January, 2024. The petitioner was also given date for personal hearing on 11th January, 2024. The petitioner admittedly could not give the reply to the show-cause notice by 19th January, 2024, as stipulated in the show-cause notice, however, on 11th January, 2024, the representative of the petitioner appeared and placed its case before the authorities. The petitioner thereafter filed its reply to the show-cause on 9th March, 2024, which was sent by Speed Post to the respondents on 11th March, 2024. The respondents passed their adjudication order under Section 73 on 20th March, 2024.
2. It appears from the said order that two dates are mentioned in the order, which are 20th March, 2024 and 19th December, 2023. The petitioner preferred an appeal on 3rd December, 20242 against the adjudicating order and an order was passed in the appeal on 27th January, 2025 rejecting the appeal. The petitioner relied on Section 75(4), in support of his contention, that before passing an adverse order against the petitioner it was incumbent on the adjudicating authorities to give an opportunity of personal hearing to the petitioner. The respondents have appeared and the learned counsel has submitted that there is no scope for giving further personal hearing to the petitioner when once such hearing has already been on 11th January, 2024 when, the petitioner allegedly refused to give any further written objection to the show-cause notice. The said fact would appear from the order dated 19th December, 2023.
3. After hearing learned advocates for both the parties, this Court is of the opinion that the suspicion arises in the mind of this Court when in the adjudicating order, there are two dates are appearing one 20th March, 2024 and another on 19th December, 2023. The annexure to the said order is also dated 19th December, 2023. Therefore, it can be presumed that while passing the order under Section 73 on 19th December, 2023, the respondents did not have the occasion to consider the reply of the petitioner given on 9th March, 2024. Therefore, it is also noted that after the reply to the show-cause notice was filed by the petitioner, if the respondent authorities contemplated to pass an adverse order against the petitioner, they ought to have given an opportunity of hearing on the reply to the show-cause notice filed by the petitioner. The petitioner has also drawn the attention of this Court to an additional notice tab, which was available to the petitioner, in the event, the petitioner was not given an opportunity of personal hearing.
4. The respondents disputes the claim of the petitioner and submitted additional notice tab are only available in the event, an assessee is deprived of any right to reply or under special circumstances, which in the present case, is not established by the petitioner. She also submitted that the petitioner has an alternative remedy before the Tribunal against the appellate order and, therefore, the present writ petition is not maintainable.
5. After hearing the parties, this Court finds it necessary to allow the petitioner another opportunity of personal hearing before the adjudicating authority upon payment of 10% of the disputed tax in addition to the alleged 10% tax has already been recovered and the 10% that was deposited for preferring the appeal.
6. The respondents are directed to pass the adjudicating order after giving the personal hearing to the petitioner within four weeks from the date of communication of this order by the petitioner.
7. In the event, the petitioner does not cooperate with the respondent authorities in participating in the personal hearing, thereafter the original adjudicating order shall revive.
8. Accordingly, W.P.A. 10412 of 2025 is disposed of.
9. There shall be, however, no order as to costs.
10. Urgent photostat certified copy of this order, if applied for, be furnished to the parties expeditiously upon compliance of all legal formalities.
