Case Law Details
Ultratech Cement Limited Vs Union of India (Madhya Pradesh High Court)
The court lambasts the assessing officer for passing order which shows total non application of mind and not granting opportunity of hearing to the petitioner in violation of section 75(4) of the CGST Act.
The petitioner is a manufacturer. It availed ITC. There was mismatch in 2A V/s 3B. Credit was sought to be disallowed. Notice was issued. The petitioner replied. However, without hearing the petitioner, order came to be passed in Form DRC-07. Hence, petition was filed.
The Hon’ble Court set aside the order and allowed the writ petition. The court lambasts the assessing officer for passing order which shows total non application of mind and not granting opportunity of hearing to the petitioner in violation of section 75(4) of the CGST Act. No time was granted to the respondent to file affidavit in reply as it would to the agony of the petitioner and waste precious judicial time. If the assessing officer had considered the reply of the petitioner, the occasion for filing writ petition would not have arisen. Directs that officer other than Assessing officer who passed the order should consider the reply of the petitioner.
FULL TEXT OF THE JUDGMENT/ORDER OF MADHYA PRADESH HIGH COURT
Heard on the question of admission and interim relief.
The petitioner has impugned the Assessment order No.ZD230922007854F dated 23/09/2022, passed by the respondent No.3 for the period April 2021 to January 2022, without granting any personal hearing.
Learned counsel for the petitioner contended that the impugned order has been passed without granting personal hearing. Despite the fact that Section 75 of the Central Goods & Service Tax Act (in short … “the Act”) lays down general provision relating to determination of tax. Section 75(4) of the Act requires the Assessing Officer/proper officer to grant opportunity to the assessee before passing any adverse order. For the purpose of convenience Section 75(4) of the Act is reproduced below:-
“(4) An opportunity of hearing shall be granted where a request is received in writing from the person chargeable with tax or penalty or where any adverse decision is contemplated against such person.”
Learned counsel for the petitioner submitted that the impugned order is an adverse decision against the petitioner, Therefore, the petitioner was entitled for an opportunity of being heard. Thus, the impugned ex-parte order is in clear violation of Section 75(4) of the Act.
On the other hand, learned counsel for the respondents opposed the prayer and submitted that a chance to file reply may be granted to the respondents.
Heard learned counsel for the parties and perused the record.
From perusal of the impugned order dated 23/09/2022, it can be seen that it is one of those blatant cases of breach of principles of natural justice and total non-application of mind. The only reason assigned in the impugned order is that the reply filed by the petitioner is not acceptable and no tax has been deposited by the petitioner, therefore, the reply is rejected.
Admittedly, as per Section 75(4) of the Act, personal hearing is mandatory before passing any adverse order against the assessee. In the circumstances, we see no reason why we should wait for the respondents to file the reply and prolong the agony of the petitioner and also waste precious judicial time. If the Assessing Officer had only considered the file properly and dealt with the reply filed by the petitioner, then the need for the petitioner to approach this Court would not haven arisen.
In view of the above, the order dated 23/09/2022 is quashed and is hereby set aside. A different Assessing Officer other than the officer, who has passed the impugned order dated 23/09/2022 shall consider the reply as well as afford opportunity of hearing to the petitioner and, thereafter, pass the order in accordance with law, within a period of eight weeks from the date of receipt of the order.
The petition stands disposed of.
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