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2022 (12) TMI 856 - HC - GSTViolation of principles of natural justice - validity of assessment order - no personal hearing was accorded to the petitioner before passing order impugned despite the request made - HELD THAT:- From perusal of Section 75(4) of the Act, 2017, it is evident that opportunity of hearing has to be granted by the authority under the said Act where either a request is received from the person chargeable with tax or penalty for opportunity of hearing or where any adverse decision is contemplated against such person. Thus, where an adverse decision is contemplated against a person even he need not to request for opportunity of personal hearing and it is mandatory for the authority concerned to afford opportunity of personal hearing before passing any order adverse to such person. In view of the legislative mandate, in case of non-affording of opportunity of hearing by the assessee by intimating him the date, time and venue for personal hearing, the assessment order was found to be in violation of the principles of natural justice. The Article 226 of the Constitution of India confers discretionary power on the High Court, however, in case of availability of alternative remedy, as self-restraint, not as a rule of law, the High Court could not entertain the writ petition and may relegate the person approaching it to avail the alternative remedy. However, there are certain exceptions to the rule of alternative remedy as settled by the Apex Court in a catena of decisions and one of them is in violation of principles of natural justice, which is prejudicial to the interest of the writ petitioner - It is evident that the order of assessment dated 13.9.2022 was passed by the respondent no.2 under Section 74 of the Act, 2017 for the assessment year 2017-18 without affording opportunity of personal hearing as sought by petitioner. The act of the respondent no.2 in denial of the opportunity of personal hearing to the petitioner is in clear contravention of the statutory mandate under Section 75(4) of the Act, 2017. The element of principles of natural justice incorporated in the statutory provisions cast a mandate on the statutory authority to follow the procedure for finalization of its action. The assessment order dated 06.09.2022 as rectified on 13.9.2022 is, thus, found to be illegal being in contravention of provisions of Section 75(4) of the Act, 2017 and is hereby set-aside. The matter is remitted back to the respondent no.2 to pass a fresh order strictly in accordance with law after affording opportunity of hearing to the petitioner herein - Petition allowed by way of remand.
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