Case Law Details
Om Traders Vs Deputy Commissioner State Tax And Another (Allahabad High Court)
In the case abovementioned Hon’ble Allahabad HC disposed off the writ petition by directing to consider the impugned order as notice u/s 73 GST for the purpose of filing objections.
Petitioner, a LLP, engaged in the business of manufacturing and sale of goods claimed to be exempted from liability of tax/duty under GST. AO imposed liability of tax upon the sale for the relevant FY along with interest and penalty u/s 73 GST.
No notice GST DRC-01A was served upon the assessee hence he could not make a reply. Petitioner became aware only after when order was uploaded on the tab “view additional notices and orders”. Petitioner immediately filed appeal before appellate authority which was dismissed as time barred. Show cause notice was not uploaded on the GST Portal under tab “view additional notices and orders”. In the decision of Ola Fleet Technologies Pvt. Ltd. v. State of U.P. and Others (Writ Tax No. 855 of 20240) it was held that when tax liability notice, or order was not reflecting under tab ‘view notices and orders’ it remained a valid dispute as to non-consideration/consideration of the various documents of returns available which could have been shown in reply to the show cause notice. The division bench, in the case abovementioned, was of the view that party under liability of tax in an ex parte order needs at-least an opportunity to put up his defense by submitting papers which may have led AO to uphold the claim for exemption from tax liability.
Keeping the view taken by the DB, HC directed impugned order be taken to be considered as notice u/s 73 for filing reply and documents.
Writ petition disposed off.
FULL TEXT OF THE JUDGMENT/ORDER OF ALLAHABAD HIGH COURT
1. Heard learned counsel for the petitioner and learned Standing Counsel.
2. Invoking extra ordinary jurisdiction of this Court under Article 226 of the Constitution, petitioner, a Limited Liability Partnership concern engaged in the business of manufacturing and sale of goods claimed to be exempted from liability of tax/duty under the Goods and Services Tax Act, 2017 and hence seeks to challenge the order dated 25.09.2024 passed in appeal by Additional Commissioner Grade II, first appellate authority.
3. Submission advanced by learned counsel for the petitioner is that that order of assessing officer fastening the petitioner concerned with a liability of tax upon the sale for the relevant financial year in question alongwith interest and penalty in purported exercise of power under Section 73 of the GST Act, is absolutely ex parte one as neither alleged show cause notice was ever brought to the knowledge of the petitioner, nor service of the same was physically ever effected upon petitioner. Petitioner got knowledge of the proceedings conducted its back when the order came to be uploaded on the dash board with the tab “view additional notices and orders”. Thus, it is argued that petitioner having failed to notice, the notice GST DRC- 01A, it could not make any reply at all.
4. It is also claimed that the order dated 02.2024 was also not communicated on e-mail to the petitioner. It is further pleaded that no sooner did petitioner come to know the order of assessing officer in September, 2024, petitioner immediately preferred statutory appeal before first appellate authority, however, same has been rejected on the ground of it being barred by time. Thus, two fold submissions have been advanced by the learned counsel for the petitioner:
i. In the absence of service of notice/ the show cause notice, petitioner was denied opportunity to put up its defence so as to justify no liability of tax qua business of manufacturing and sale under the GST; and
ii. Remedy of appeal having been denied on the ground of delay that was for want of knowledge, petitioner has been rendered remediless.
5. Learned counsel for the petitioner further submitted that controversy qua issue of show cause notice not being effected upon for it being not available upon tab ‘view notices and orders’ at the GST Portal and then rendering the party defenseless in the matter of liability of tax under the GST Act is no more res integra. It is submitted that division bench of this Court in the Ola Fleet Technologies Ltd. v. State of U.P. and Others (Writ Tax No. 855 of 2024 decided on 22.07.2024) has dealt with this aspect of the matter and it has been held that no material existed to reject the contention advanced on behalf of the petitioner that order impugned imposing liability of tax was not reflecting under tab ‘view notices and orders’ and so there remained a valid dispute as to non consideration/consideration of the various documents of returns available which could have been shown in reply to the show cause notice.
6. The division bench was of the view that party under liability of tax in an ex parte order needs at-least an opportunity to put up his defense by submitting papers which may have led assessing officer to uphold the claim for exemption from tax liability. The division bench accordingly, instead of keeping the matter pending disposed off the same with a direction that impugned order may be taken as notice to enable the petitioner to submit his reply and thereafter assessing officer may have to pass a fresh order.
7. This above division bench judgment in Ola Fleet Technologies Pvt. Ltd (supra) was followed by another division bench in the matter Shyam Roshan Transport State of U.P. and 2 Others, (Writ Tax No. 1756 of 2024) decided on 21.10.2024 and again division bench in the matter of Atul Agrwal v. State of U.P. and 2 Others ( Writ Tax No. 1585 of 2024 decided 18.10.2024).
8. The view taken by the division benches as cited before the Court are absolutely correct on the principle that nobody should be condemned unheard and legislature while incorporating the provision of notice/ show cause notice, intended so.
9. Recently, in the matter of M/s Akriti Food Industry LLP v. State of U.p. and 3 Others, Writ Tax No. 2070 of 2024 decided on 3.12.2024 , the Court has set aside the identical order. Accordingly, I also do not find the orders to be sustainable and equally do not consider it necessary to keep this petition pending by inviting response.
10. In view of above, I hereby direct that the order passed by the assessing officer dated 02.2024 shall be taken to be notice within the meaning of Section 73 of the GST Act, 2017 to enable the petitioner to file his objections and place its documents before assessing officer/competent authority for its consideration.
11. The petitioner shall be submitting his reply alongwith document within a period of eight weeks from today and thereafter assessing officer/competent authority shall be giving due consideration to the objections and documents filed and opportunity of hearing as well and thus shall be taking decision afresh within a further period of four weeks .
12. With these above observations and directions this petition stands disposed of.
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