Case Law Details
B. Enterprise & Anr. Vs State of West Bengal as Ors. (Calcutta High Court)
Calcutta HC Set Aside Ex Parte GST Adjudication Order Passed Without Personal Hearing Under Section 73(9) WBGST Act
The Calcutta High Court considered a writ petition challenging an adjudication order dated April 12, 2024 passed under Section 73 of the West Bengal Goods and Services Tax Act, 2017. The petitioners contended that the show-cause notice dated December 14, 2023 fixed a date for filing a reply but did not specify the date, time, or venue of personal hearing. They further submitted that the reminder dated March 2, 2024 similarly omitted these details and that the adjudication order under Section 73(9) was passed without granting any opportunity of hearing. The petitioners also alleged that the show-cause notice, reminder, and adjudication order were uploaded in the “Additional notices and orders” tab instead of the “Normal Tab”, due to which they remained unaware of the proceedings until receiving an intimation dated May 18, 2026 regarding payment of the demand, by which time the limitation for filing an appeal had expired. The State submitted that uploading the documents on the server constituted sufficient statutory compliance.
The Court noted that returns filed under Section 39(1) for the period April 1, 2018 to March 31, 2019 had been examined, discrepancies were allegedly detected, and Form DRC-01A dated November 8, 2023 had been issued before the show-cause notice under Section 73. The Court observed that the show-cause notice required a reply by January 15, 2024, but the fields relating to the date, time, and venue of personal hearing were marked “NA”, while the reminder also did not specify any personal hearing. Referring to Section 73(9), the Court observed that determination of tax, interest, and penalty is to be made after considering the representation, if any, made by the person chargeable with tax.
It was undisputed that the show-cause notice, reminder, and adjudication order had been uploaded in the “Additional notices and orders” tab rather than the “Normal Tab”. Relying on the Division Bench decision in Ram Kumar Sinhal -Vs.- State of West Bengal & Ors., the Court noted that uploading notices and orders only in the “Additional notices and orders” tab did not amount to proper communication under Section 73 of the WBGST Act read with the relevant rules. The Court further found that the adjudication order had been passed ex parte without affording the petitioners an opportunity of hearing and without complying with Section 73(9).
Holding that there had been no effective communication of the show-cause notice, reminder, and adjudication order and that the petitioners had been deprived of an opportunity to submit a reply, the Court set aside the adjudication order dated April 12, 2024. The petitioners were granted liberty to file their reply to the show-cause notice within 14 working days from receipt of the server copy of the order. The adjudicating authority was directed to fix a date of hearing, decide the issues raised in the show-cause notice afresh, and pass a reasoned order as expeditiously as possible. The Court clarified that it had interfered with the adjudication order solely on the ground of violation of the principles of natural justice and left all issues open for adjudication in accordance with law.
Cases Discussed
- Ashok Parakh, M/s. Ganapati Exports -Vs- The State of West Bengal & Ors. (Calcutta High Court), WPA 2425 of 2025, order dated July 7, 2026
- Ram Kumar Sinhal -Vs.- State of West Bengal & Ors. (Calcutta High Court), 2025 SCC OnLine Cal 6279
Appellant Was Represented By: Mr. Himangshu Kumar Ray, Mr. Subhasis Podder, Mr. Kanchan Singha, Mr. Abhilash Mittal
FULL TEXT OF THE JUDGMENT/ORDER OF CALCUTTA HIGH COURT
1. Affidavit-of-service filed in Court today be kept with the record.
2. The adjudication order dated April 12, 2024 passed by the respondent no. 4 under Section 73 of the West Bengal Goods and Services Tax Act, 2017 (WBGST Act, 2017′, for short) is under challenge in this writ petition.
3. Learned advocate appearing for the petitioners draws the attention of the Court to the show-cause notice dated December 14, 2023 and submits that though a time was fixed for submission of reply to the show-cause notice, but the date, time and venue of personal hearing was not mentioned therein. He further submits that a reminder letter to the show-cause notice was issued on March 2, 2024 fixing March 11, 2024 for submission of reply to the show-cause notice, but even in the said notice date, time and venue of personal hearing was not indicated. He submits that the order under Section 73(9) was passed on April 12,2024 without affording any opportunity of hearing to the petitioner. He further submits that the show-cause notice, the reminder letter as well as the order passed under Section 73(9) of the WBGST Act, 2017 were uploaded in the “Additional notices and orders Tab” instead of the “Normal Tab”. He thus submits that the petitioner was not aware of the date fixed for giving reply to the show-cause notice. He further submits that upon being served with an intimation for payment of the liability against demand created under Section 73 of the WBGST Act, 2017 dated May 18, 2026, the petitioners for the first time came to know of the adjudication order passed under Section 73(9) of the WBGST Act, 2017. He submits that in the meantime the period for preferring an appeal, also stood expired. He submits that since the adjudication order under Section 73(9) of the WBGST Act, 2017 was passed without affording any opportunity of hearing, the petitioners have approached this Court under Article 226 of the Constitution of India.
4. Learned advocate appearing for the petitioners places reliance upon an order dated July 7, 2026 passed by a coordinate Bench in WPA 2425 of 2025 in the case of Ashok Parakh, M/s. Ganapati Exports -Vs- The State of West Bengal & Ors. in support of his contention that the adjudication order is liable to be set aside on the ground of violation of the principles of natural justice.
5. Heard Mr. Mishra, learned Assistant Additional Advocate General, on such submission. He submits that the show-cause notice, the reminder letter as well as the adjudication order were uploaded in the server and, therefore, there was sufficient compliance of the provisions of the statute and the petitioner cannot feign ignorance.
6. Heard the learned advocates for the parties and perused the materials placed.
7. Returns furnished under Section 39(1) of the WBGST Act, 2017 for the period 01.04.2018 to 31.03.2019 were examined and since certain discrepancies, according to the Revenue, were detected an intimation of liability was issued to the petitioner in Form DRC-01A dated November 8, 2023.
8. The show-cause notice dated December 14, 2023 was issued under Section 73 of the WBGST Act, 2017 on the ground that certain discrepancies were found in the returns for the tax period April, 2018 – March, 2019 calling upon the petitioner to show cause as to why the petitioner shall not be liable to reverse the ITC/pay the amount as indicated in the said notice. Though the summary of show-cause notice specifically states that the reply is to be submitted on January 15, 2024, but against the columns under Date of personal hearing’; `time of personal hearing’ and ‘venue where personal hearing will be held’, it has been stated as ‘NA’. The reminder letter dated March 2, 2024 also is silent about the date, time and venue of personal hearing.
9. Section 73(9) of the WBGST Act, 2017 states that the proper officer shall, after considering the representation, if any, made by the person chargeable with tax, determine the amount of tax, interest and penalty due from such person and issue an order.
10. On a bare reading of the said provision this Court finds that the amount of tax, interest and penalty due from a person shall be determined by issuing an order only after considering the representation, if any, made by the person chargeable with tax.
11. The petitioners allege that the show-cause notice as well as the reminder letter was uploaded in the “Additional notices and orders Tab” and not in the “Normal Tab”.
12. It is not in dispute that the show cause notice, reminder letter and the adjudication order was uploaded in the “Additional notices and orders Tab” and not the “Normal Tab”.
13. The issue whether uploading of notices and orders in the `Additional notices and orders’ can be said to be an effective communication, fell for consideration before the Hon’ble Division Bench in the case of Ram Kumar Sinhal -Vs.- State of West Bengal & Ors., reported at 2025 SCC OnLine Cal 6279. The Hon’ble Division Bench specifically held that notices and orders uploaded in the `Additional notices and orders’ tab, as opposed to the “Normal Tab” could not constitute a proper communication or uploading as contemplated under Section 73 of the WBGST Act read with the relevant rules.
14. That apart, in the show-cause notice and the reminder letter the date, time and venue of personal hearing were not indicated. The adjudication order was passed ex parte and without affording any opportunity of hearing to the petitioners.
15. To the mind of this Court, the adjudication order has been passed without complying with the provisions laid down under Section 73(9) of the WBGST Act, 2017.
16. This Court accordingly holds that, there was no effective communication of the show-cause notice, the reminder letter and the order of adjudication and the petitioners were also deprived of the opportunity to give reply to the show-cause notice. Thus, an opportunity should be given to the petitioner to submit a reply to the show-cause notice with a specified time frame.
17. For all the reasons as aforesaid, this Court is inclined to interfere with the ex parte adjudication order.
18. Accordingly, the order of adjudication dated April 12, 2024, passed by the respondent no. 4, is set aside. The petitioners are granted liberty to file a reply to the show-cause notice within 14 working days from receipt of the server copy of this order.
19. The respondent no. 4 shall fix a date of hearing and shall decide the issue raised in the show-cause notice afresh and by passing a reasoned order as expeditiously as possible.
20. It is, however, made clear that the order of adjudication has been interfered with only on the ground that the same was passed in violation of the principles of natural justice and all points are kept open to be decided by the adjudicating authority in accordance with law.
21. Urgent Photostat certified copy of this order be supplied to the parties, if applied for, upon compliance of requisite formalities.
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