Sri Sai Vishwas Polymers Vs Deputy Commissioner and another (Uttarakhand High Court)
The Uttarakhand High Court considered a challenge by Sri Sai Vishwas Polymers against an assessment order passed under the CGST Act, 2017. The petitioner contended that the Assessing Officer violated Section 75(4) by passing the assessment order without providing an opportunity of personal hearing. The Court noted that Section 75(4) requires a personal hearing where the assessee requests it in writing or where an adverse decision is contemplated against the assessee. Since the Assessing Officer had drawn conclusions adverse to the petitioner, the Court held that a personal hearing was required even without a written request.
The Court relied on the settled principle that where a statute requires something to be done in a particular manner, it must be done in that manner or not at all. In this context, the Court referred to Independent Sugar Corporation Ltd. v. Girish Sriram Juneja & Ors., Civil Appeal No. 6071 of 2023 dated 29.01.2025, and the principles referred to therein from A. R. Antulay v. Ramdas Sriniwas Nayak and Sharif-ud-Din v. Abdul Gani Lone. The Court held that the scheme of the CGST Act mandates personal hearing in either of the two circumstances specified in Section 75(4), including where an adverse order is contemplated.
The Department relied upon an earlier order of the High Court in Writ Petition (M/B) No. 256/2025. The Court distinguished that decision, observing that it had not considered the merits or binding effect of Section 75(4) and had instead relegated the parties to the available alternate remedy. In the present case, the petitioner had already availed the alternate remedy, but the Appellate Authority rejected it on limitation alone. The Court further observed that the impugned proceedings resulted in civil consequences and that the Appellate Authority failed to appreciate the requirement of providing an opportunity of hearing.
Accordingly, the High Court held that the mandate and scheme of Section 75(4) had been violated and that the Appellate Authority had failed to appreciate the settled position concerning orders affecting civil rights. The writ petition was allowed, the impugned order was set aside, and the matter was remitted to the Appellate Authority for reconsideration in accordance with law. Any pending miscellaneous petitions were directed to stand closed.
Cases Discussed
- Independent Sugar Corporation Ltd. v. Girish Sriram Juneja & Ors. (Supreme Court), Civil Appeal No. 6071 of 2023 dated 29.01.2025
- A. R. Antulay v. Ramdas Sriniwas Nayak (Supreme Court), (1984) 2 SCC 500
- Sharif-ud-Din v. Abdul Gani Lone (Supreme Court), (1980) 1 SCC 403
- Chettiam Veettil Ammad v. Taluk Land Board (Supreme Court), (1980) 1 SCC 499 : AIR 1979 SC 1573 : (1979) 3 SCR 839
- Nazir Ahmad v. King-Emperor (Privy Council), AIR 1936 PC 253 (2) : 63 IA 372 : (1936) 37 Cri LJ 897
- Taylor v. Taylor, (1876) 1 Ch D 426
FULL TEXT OF THE JUDGMENT/ORDER OF UTTARAKHAND HIGH COURT
Heard the learned counsel for the petitioner, and the learned Brief Holder for the State of Uttarakhand.
2. The short point, that is canvassed before this Court is that the Assessing Officer has passed the order of assessment in violation of the provisions of sub-section (4) of Section 75 of the Central Goods and Services Tax Act, 2017 (for short “CGST Act”). Section 75 of the CGST Act deals with the general provisions relating to determination of tax, and the procedure that is required to be adopted by the Assessing Authority, while completing the process of assessment. One such pre-requisite is that the Assessing Authority is required to afford an opportunity of personal hearing, where it is requested by the Assessee in writing, or where any adverse decision is contemplated against such person, meaning thereby that the Assessing Authority is required to comply with the mandate of sub-section (4) of Section 75 in either of the two circumstances, i.e. where a request for personal hearing is made and specifically sought for in writing, or where an adverse decision is contemplated against such person.
3. In the instant case, the Assessing Officer has drawn conclusions adverse to the interest of the petitioner, and that being the undisputed fact, the Assessing Authority was required to afford an opportunity of personal hearing, even in the absence of a written request. It is needless to say that, when the law requires a thing to be done in a particular manner, the said act shall be performed in the said manner alone, or not at all. Law in this regard is no more res integra, and is well-settled by catena of judgments of the Hon’ble Apex Court. A similar view was taken by the Hon’ble Supreme Court in the case of Independent Sugar Corporation Ltd. v. Girish Sriram Juneja & Ors., Civil Appeal No. 6071 of 2023 dated 29.01.2025. Paragraph nos. 54 & 83 of the said judgment reads as follows:
“54. In the present interpretive exercise, one also needs to be mindful of the legal principle which says that where a statute requires one to do a certain thing in a certain manner, it must be done in that particular manner or not done at all. For this proposition, it would be relevant to extract the following from the judgment in A. R. Antulay v. Ramdas Sriniwas Nayak, (1984) 2 SCC 500:
“22…. It is unnecessary to refer to the long line of decisions commencing from Taylor v. Taylor [(1876) 1 Ch D 426]; Nazir Ahmad v. King-Emperor [AIR 1936 PC 253 (2) : 63 IA 372 : (1936) 37 Cri LJ 897] and ending with Chettiam Veettil Ammadv. Taluk Land Board [(1980) 1 SCC 499 : AIR 1979 SC 1573 : (1979) 3 SCR 839], laying down hitherto uncontroverted legal principle that where a statute requires to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden.”
83. Sharif-ud-Din v. Abdul Gani Lone, (1980) 1 SCC 403, the Supreme Court held as follows:
“9… In order to find out the true character of the legislation, the court has to ascertain the object which the provision of law in question has to subserve and its design and the context in which it is enacted. If the object of a law is to be defeated by non-compliance with it, it has to be regarded as mandatory… Whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow.”
4. The scheme of the Act mandates that, in either of the two circumstances, a personal hearing is required to be given to the party, who either makes a written request, or against whom the authorities contemplate an adverse order. In the case on hand, the latter part is applicable, and the Assessing Authority ought to have complied with the mandate of sub-section (4) of Section 75 of the CGST Act.
5. Per contra, the learned Brief Holder for the Department would place reliance on an earlier order of this Court, rendered in Writ Petition (M/B) No. 256/2025. The facts involved in the instant case, and the facts involved therein are not on par. In the aforementioned decision, relied upon by the learned Brief Holder, the Court has not entered upon the merits and the binding effect of subsection (4) of Section 75, and has relegated the parties to the alternate remedy that is available under law. In the instant case, the petitioner has already approached the Competent Authority, and availed of the alternate remedy, and the Appellate Authority has been pleased to reject the same, on the ground of limitation alone.
6. The Appellate Authority failed to appreciate that the order impugned, results in civil consequences, and any proceedings, which results in civil consequences to the petitioner, are required to be passed after affording an opportunity of hearing. In the case of CGST Act, the Act itself, and in particular sub-section (4) of Section 75, mandates that an opportunity of personal hearing ought to be given to the parties concerned, more so when the authorities contemplate an order adverse to the interest of the assessee.
7. In that view of the matter, we are of the considered opinion that the Appellate Authority has failed to appreciate the settled position in law that no order, affecting civil rights of a citizen, can be passed without affording an opportunity of hearing, and also failed to appreciate the fact that the mandate, and the scheme of the Act itself, has been violated by the concerned authorities.
8. In that view of the matter, the Writ Petition is allowed. The order impugned is set-aside. The matter is remitted back to the Appellate Authority for reconsideration in accordance with law.
As a sequel thereto, the miscellaneous petitions, if any pending, shall stand closed.
