Person, who’s case is based on falsehood, has no right to approach the court

Jambudwip Exports And Imports Limited Vs State of U.P (Allahabad High Court)

Petitioner submits that since the impugned assessment order has been passed without affording opportunity of hearing, therefore, the impugned assessment order deserves to be quashed.

HC find that the finding of the Assessing Officer regarding issuance of show cause notice in Form GST-DRC-01A, under Section 74(5) of the Act, 2017 requiring the petitioner to show cause and avail opportunity of personal hearing on the date, time and place fixed in the notice, has not been denied by the petitioner in the writ petition. A copy of the show cause notice requiring the petitioner to submit his reply and fixing the date, time and place for personal hearing, has been produced before us by the respondent no. 3 along with the aforesaid instructions dated 14.6.2022, in which the date, time and place for personal hearing is clearly mentioned. The fact of issuance of notice in Form GST-DRC-01 dated 14.1.2022 is clearly mentioned at internal page 12 of the impugned assessment order but the petitioner has neither filed copy of the aforesaid show cause notice nor disclosed it in the writ petition nor disputed the finding of fact recorded in the impugned order regarding issuance of said notice and affording of opportunity of personal hearing to him. Thus, the petitioner has concealed material facts of the case which also dis-entitles him to any relief in writ jurisdiction under Article 226 of the Constitution of India.

In the case of S.P. Chengal Varaya Naidu (dead) by L.Rs Vs. Jagannath (dead) by L.Rs and others, AIR 1994 SC 853, the Hon’ble Supreme Court held in para 7 as under:-

“7. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that “there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence”. The principle of “finality of litigation” cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who’s case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.“

For all the reasons aforestated, we do not find any merit in the submission of learned counsel for the petitioner regarding breach of principles of natural justice by the respondent no. 3 while passing the impugned order. Consequently, the submissions of learned counsel for the petitioner are hereby rejected.

FULL TEXT OF THE JUDGMENT/ORDER OF ALLAHABAD HIGH COURT

1. Heard Sri Nishant Mishra, learned counsel for the petitioner and Sri B.P. Singh Kachhwa, learned standing counsel for the State.

2. This writ petition has been filed praying for the following relief:-

“A-Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 17.2.2022 (Annexure-1) passed by respondent no. 3 in gross violation of principles of natural justice.”

3. Learned counsel for the petitioner submits that after issuing GST-D.R.C.-01A under Section 74 of Central Goods and Services Tax Act / Uttar Pradesh Goods and Services Tax Act, 2017, no notice or opportunity of hearing was afforded to the petitioner and straightaway the impugned assessment order was passed under Section 74 of the CGST Act / UPGST Act, 2017 in Form GST-DRC-07 has been passed by the respondent no. 3. He submits that since the impugned assessment order has been passed without affording opportunity of hearing, therefore, the impugned assessment order deserves to be quashed more precisely in view of the provisions of Section 75(4) of the Act and the law laid down by this Court in Writ Tax No. 1029 of 2021 (Bharat Mint & Allied Chemicals Vs. Commissioner Commercial Tax & 2 Others) decided on 4.3.2022.

4. Learned standing counsel has placed before us the written instructions of the respondent no. 3 dated 14.6.2022 which is kept on record. He submits that the impugned order has been passed well in accordance with law and after due notice and opportunity of hearing to the petitioner.

5. We have carefully considered the submission of learned counsel for the parties and perused the record of the writ petition.

6. Briefly stated facts of the present case are that a survey of business premises of the petitioner was conducted by the Special Investigating Branch, Muzaffarnagar on 11.12.2018 in which no books accounts were found. Summon dated 7.4.2022 under Section 70 of the Act, 2017 was issued to the petitioner but instead of making compliance, the petitioner sought adjournment through e-mail for 15 days. Accordingly, next summon was issued fixing the date for 22.4.2021. On the date fixed, neither the petitioner appeared nor sought any adjournment. Thereafter, a notice under Section 74(5) of the Act, 2017 in Form GST-DRC-01A dated 18.12.2021 was issued to the petitioner giving intimation to deposit tax of Rs. 99,61,895.80/-, interest 94,80,942.00/-, penalty Rs. 14,94,284.00/-, total Rs. 2,09,37,121.80/-/- by 30.12.2021. In response, the petitioner sought adjournment through on-line and accordingly the next date was fixed for 6.1.2022. The petitioner again sought adjournment for 15 days, and therefore, the next date was fixed for 12.1.2022 under intimation to him through e-mail. On 12.1.2022, learned counsel for the petitioner appeared before the Assessing Officer along with a staff of the petitioner and filed vakalatnama and sought adjournment on the ground of illness without filing any medical certificate or proof of illness. Therefore, the adjournment application dated 12.1.2022 was rejected by the Assessing Officer.

7. Thereafter, a show cause notice in Form GST-DRC-01 being Notice No. ZD090122017875F dated 14.1.2022 was issued by the officer to the petitioner through e-mail fixing the date, time and place for personal hearing and for submission of reply as 14.2.2022 at 11:00 a.m. in the office of the respondent no. 3 requiring the petitioner to show cause as to why his liability to tax at Rs. 99,61,895.80, interest 96,60,255.40 (upto 14.1.2022), penalty Rs. 99,61,895.80, total Rs. 2,95,84,047.00 may not be determined.

8. Despite service of the aforesaid notice, neither the petitioner appeared nor submitted any reply to the show cause notice. Consequently, the respondent no. 3 has passed the impugned assessment order dated 17.2.2022, under Section 74(9) of the Act, 2017, after considering the adverse material available on record.

9. Aggrieved with the aforesaid assessment order for the assessment year 2017-18 (July, 2017 to March, 2018), the petitioner has filed the present writ petition.

10. We find that the finding of the Assessing Officer regarding issuance of show cause notice in Form GST-DRC-01A, under Section 74(5) of the Act, 2017 requiring the petitioner to show cause and avail opportunity of personal hearing on the date, time and place fixed in the notice, has not been denied by the petitioner in the writ petition. A copy of the show cause notice requiring the petitioner to submit his reply and fixing the date, time and place for personal hearing, has been produced before us by the respondent no. 3 along with the aforesaid instructions dated 14.6.2022, in which the date, time and place for personal hearing is clearly mentioned. The fact of issuance of notice in Form GST-DRC-01 dated 14.1.2022 is clearly mentioned at internal page 12 of the impugned assessment order but the petitioner has neither filed copy of the aforesaid show cause notice nor disclosed it in the writ petition nor disputed the finding of fact recorded in the impugned order regarding issuance of said notice and affording of opportunity of personal hearing to him. Thus, the petitioner has concealed material facts of the case which also dis-entitles him to any relief in writ jurisdiction under Article 226 of the Constitution of India.

11. In the case of S.P. Chengal Varaya Naidu (dead) by L.Rs Vs. Jagannath (dead) by L.Rs and others, AIR 1994 SC 853, the Hon’ble Supreme Court held in para 7 as under:-

“7. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that “there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence”. The principle of “finality of litigation” cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who’s case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.“

12. For all the reasons aforestated, we do not find any merit in the submission of learned counsel for the petitioner regarding breach of principles of natural justice by the respondent no. 3 while passing the impugned order. Consequently, the submissions of learned counsel for the petitioner are hereby rejected.

13. For all the reasons aforestated, the writ petition is dismissed with cost of Rs. 5,000/- which shall be deposited by the petitioner with the High Court Legal Services Committee within three weeks.

14. Liberty is granted to the petitioners to avail the remedy of appeal on merit against the impugned order, in accordance with law.