Assessment Order not sustainable when no reasonable opportunity is granted for proper representation and filing of reply

[CA Bimal Jain]

The Hon’ble Madras High Court in the case of TVL. SHANTHI VIJAY GRANITES, REPRESENTED BY ITS PARTNER MR. KALURAMMALI VERSUS THE ASSISTANT COMMISSIONER (ST) , HOSUR [2023 (12) TMI 356 - MADRAS HIGH COURT] disposed of the writ petition, and set aside the Assessment Order on the ground that adequate opportunity for representation and filing of reply was not granted to the Assessee by the Revenue Department.

Facts:

Tvl. Shanthi Vijay Granites (“the Petitioner”) filed a writ petition challenging the order dated March 19, 2020, issued by the Revenue Department (“the Respondent”) within two days of issuance of Form GST DRC-01. Also, the assessment order in Form ASMT-07 was issued on the same day of issuance of Form GST DRC-01. The Petitioner contended that no adequate opportunity has been provided to the Petitioner for responding to the Notices issued.

Issue:

Whether Assessment Order is sustainable when no reasonable opportunity is granted for proper representation and filing of reply?

Held:

The Hon’ble Madras High Court in TVL. SHANTHI VIJAY GRANITES, REPRESENTED BY ITS PARTNER MR. KALURAMMALI VERSUS THE ASSISTANT COMMISSIONER (ST) , HOSUR [2023 (12) TMI 356 - MADRAS HIGH COURT] held as under:

• Observed that, there is no restriction on exercising power under Article 226 of the Constitution of India, even if alternate remedy exists, in cases where there is violation of principles of natural justice or lack of jurisdiction or error apparent on the face of record.
• Noted that, the Form GST DRC-01 is not supported by the Annexure to Show Cause Notice (“the SCN”), therefore, the Petitioner was not provided with the necessary particulars to respond. Also, the Assessment Order in Form ASMT-07 and the SCN were issued on the same day.
• Opined that, the Impugned Order was issued without any opportunity.
• Further Opined that, when Impugned Order is issued within forty-eight hours of issuance of the SCN, the opportunity to respond was merely illusory, therefore, the proceedings are vitiated, thus, the writ petition is disposed of.
• Held that, the Impugned Order is set aside.
• Clarified that, the Respondent is entitled to do re-assessment subject to the condition that the Petitioner is granted reasonable opportunity in accordance with law.

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