Case Law Details
Hindustan Construction Company Ltd Vs Union of India (Rajasthan High Court)
Learned AAG Shri Shah submitted that as the petitioner’s representative failed to appear before the officer on 22.06.2022 in terms of the opportunity fore hearing provided vide note-sheet dated 30.05.2022, there was no requirement for the officer to have waited any further before passing the impugned order.
However, Shri Shah and Shri Sunil Bhandari, Advocate, representing the State GST Department are not in a position to dispute the fact that the detailed written submissions filed by the petitioner in response to the show cause notice were not adverted to in the impugned orders.
Having considered the submissions advanced at the Bar and after going through the pleadings of the petitioner, reply filed on behalf of the respondents and the impugned orders, it is clear on the face of the record that the officer did not consider the detailed reply submitted on behalf of the petitioner while passing the impugned orders which are sketchy and non-speaking on the face of it. Thus, the impugned orders, apart from suffering from the vice of non-application of mind to the reply of the party, also run in violation of mandatory requirement of Section 75(6) of the CGST Act, which required that The proper officer, in his order, shall set out the relevant facts and the basis of his decision.
Hence, the impugned orders cannot be sustained and are hereby quashed and set aside.
FULL TEXT OF THE JUDGMENT/ORDER OF RAJASTHAN HIGH COURT
These writ petitions have been preferred on behalf of the petitioner for challenging order No.43 dated 24.06.2022 imposing interest and penalty (WP No.12419/2022) and Order No.42 dated 24.06.2022 imposing interest (WP No.12416/2022) by the respondent Joint Commissioner, State GST, Circle Nimbaheda, on account of delayed payment of tax.
The petitioner has challenged the final assessment order on the ground of non-adherence to the principles of natural justice, violation of mandatory requirement of Section 75 of the CGST Act and numerous other grounds.
Learned counsel Shri Raichandani, representing the petitioner, submitted that a detailed reply to the show cause notice was furnished on behalf of the petitioner and a request was also made for personal hearing before adjudication but the impugned orders were passed without providing opportunity of hearing and without adverting to the petitioner’s assertions made in the reply.
Considering these facts and circumstances, this Court, vide order dated 02.12.2022, issued a show cause notice to the Joint Commissioner and directed that he shall remain present in the Court with the original dispatch register.
Today, the Joint Commissioner Shri Hitesh Trivedi is personally present in the Court with the dispatch register. He is represented by counsel Dr. Charu Mathur through VC. The officer submitted that the dispatch section of the office remains open on Saturdays and that the notice for personal hearing was as a matter of fact duly dispatched and delivered to the petitioner’s representative Shri Satyanarayan Chechani on 18.06.20222, which was a Saturday. It was further pointed out that the intimation to remain present for personal hearing was already recorded in the order-sheet dated 30.05.2022 and thus, no separate notice was even required to be issued. He submitted that there was no malafide intention on his part and the impugned orders were passed ex parte as no-one appeared on behalf of the petitioner to address on the show cause notice.
Learned counsel Shri Raichandai, appearing through VC, after having been apprised of the contents of the original record, candidly conceded that the allegations of malafides attributed to the officer in the oral submissions made before the Court on 02.12.2022 may be considered withdrawn. He, however, submitted that as the impugned orders are not speaking, the same deserved to be set aside and petitioner may be given one opportunity to advance oral submissions qua the show cause notices and the Joint Commissioner be directed to pass a fresh reasoned order thereupon after considering the oral submissions and detailed reply filed on behalf of the petitioner.
Learned Counsel Dr. Mathur has advanced submissions in response to the show cause notice issued to the officer vide order dated 02.12.2022. She urged that as a matter of fact, the petitioner had deposited the tax amount with delay and thus, the impugned notice dated 17.02.2021 was issued as direct legal consequence and the demand for interest and penalty was justifiably raised on account of delayed payment of tax. She further submits that the officer acted in bonafide discharge of duties and this fact is duly verified from the original record. The petitioner’s representative appeared before the officer on 30.05.2022 and submitted the reply and on the same date, the representative was intimated the next date for personal hearing, i.e. 22.06.2022. However, on that date, no-one appeared to represent the petitioner and hence, the impugned order came to be passed ex parte.
Learned AAG Shri Shah submitted that as the petitioner’s representative failed to appear before the officer on 22.06.2022 in terms of the opportunity fore hearing provided vide note-sheet dated 30.05.2022, there was no requirement for the officer to have waited any further before passing the impugned order.
However, Shri Shah and Shri Sunil Bhandari, Advocate, representing the State GST Department are not in a position to dispute the fact that the detailed written submissions filed by the petitioner in response to the show cause notice were not adverted to in the impugned orders.
Having considered the submissions advanced at the Bar and after going through the pleadings of the petitioner, reply filed on behalf of the respondents and the impugned orders, it is clear on the face of the record that the officer did not consider the detailed reply submitted on behalf of the petitioner while passing the impugned orders which are sketchy and non-speaking on the face of it. Thus, the impugned orders, apart from suffering from the vice of non-application of mind to the reply of the party, also run in violation of mandatory requirement of Section 75(6) of the CGST Act, which reads as below:-
“Section 75 – General provisions relating to determination of tax
(1) xxx xxx
(2) xxx xxx
(3) xxx xxx
(4) xxx xxx
(5) xxx xxx
(6) The proper officer, in his order, shall set out the relevant facts and the basis of his decision.”
Hence, the impugned orders cannot be sustained and are hereby quashed and set aside.
The petitioner’s representative shall appear before the Joint Commissioner on 22.12.2022, whereafter, opportunity of hearing shall be provided and fresh order shall be passed assigning proper reasons.
The show cause notice issued to the Joint Commissioner is discharged.
The writ petitions are allowed in these terms. No order as to the costs.
