Preca Solutions India Pvt. Ltd. v. Assistant Commissioner (State Tax)
2023-03-31
A.V.SESHA SAI, VENKATA JYOTHIRMAI PRATAPA
body2023
DigiLaw.ai
ORDER : A.V. Sesha Sai, J. 1. Heard Sri Varun Byreddy, learned counsel for the petitioner and Sri Sai Kumar, learned Assistant Government Pleader for the respondents. 2. The order passed by the Assistant Commissioner (State Tax)-1st respondent herein vide proceedings No.F.Y.2018-19(GST), dated 18.11.2022, is under challenge in the present Writ Petition filed under Article 226 of the Constitution of India. 3. Anterior to the impugned order, the Assistant Commissioner (State Tax) issued a show-cause notice dated 22.06.2022 to the petitioner. There is absolutely no controversy with regard to the factum of filing explanation on 01.08.2022 in response to the said show-cause notice issued by the Assistant Commissioner (State Tax). The principle contention advanced by the learned counsel for the petitioner in the instant Writ Petition is that in contravention of the mandatory requirements of law as provided under sub-section (4) of Section 75 of the Central Goods and Service Tax Act, 2017 (hereinafter referred to as “the Act, 2017”) and in violation of principles of natural justice, the Assistant Commissioner (State Tax)-1st respondent herein passed the impugned order and as such, the impugned order is liable to be set aside on the said ground. 4. On the other hand, Sri Sai Kumar, learned Assistant Government Pleader contends that since the 1st respondent herein issued a show-cause notice and the petitioner herein submitted an explanation in response to the same, it cannot be construed by any stretch of imagination that the impugned order is in violation of principles of natural justice and in contravention of the mandatory requirements of law. 5. In this context, it would be appropriate and apposite to refer to the Section 75 of the Act, 2017, which deals with the general provisions relating to determination of tax. Sub-section (4) of Section 75 of the Act, 2017, mandates that an opportunity of hearing shall be granted where a request is received in writing from the person chargeable with tax or penalty or any adverse decision is contemplated against such person. 6. A perusal of the order impugned in the present Writ Petition discloses in unequivocal terms that the petitioner made a request to the respondents to afford an opportunity of personal hearing. The impugned order also states that vide reference 1st cited in the impugned order, notice was issued affording an opportunity of personal hearing and the petitioner failed to avail the same.
The impugned order also states that vide reference 1st cited in the impugned order, notice was issued affording an opportunity of personal hearing and the petitioner failed to avail the same. However, the fact remains that the 1st reference in the impugned order is only an authorization issued by the Joint Commissioner, but not the notice said to have been issued to the petitioner, affording an opportunity of personal hearing. 7. The above aspects drives this Court towards irresistible conclusion that the 1st respondent herein passed the impugned order not only in violation of mandatory provisions under sub-section (4) of Section 75 of the Act, 2017, but also in violation of the principles of natural justice. Therefore, the impugned order is liable to be set aside. 8. Accordingly, the Writ Petition is allowed, setting aside the impugned order dated 18.11.2022 passed by the 1st respondent. However, this order will not preclude the authorities from passing order afresh, after hearing the petitioner. No order as to costs. 9. Miscellaneous petitions, if any, pending in this case, shall stand closed.