TMI Blog2023 (7) TMI 1101X X X X Extracts X X X X X X X X Extracts X X X X ..... In the facts of the present case, there is a clear violation of the principles of natural justice. The order has been passed disregarding the specific provisions incorporated by the Legislature in consonance with the well-settled principles of audi alteram partem - it is difficult to understand why and how any person with a reasonable understanding of the law could observe that a telephonic conversation and the visit of the representative of a party can be considered as a personal hearing - the impugned order, therefore, has been passed in clear violation of the provisions of Section 75(4) and Section 75(5) of the CGST Act and is also in clear violation of principles of natural justice. The Officer seems to be in some sort of hurry to conclude adjudication prior to the end of Financial Year on 31.03.2021 and passed the order, the very next day of filing of the reply - the same is clearly not only in violation of statutory principles of the Act but also is clear violation of the principles of natural justice. The mere availability of alternate remedy, however, does not oust the jurisdiction of the High Court and will not make the writ petition as not maintainable. The availabi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned to 31.08.2021 and on the said date the counsel appearing for the respondent stated that the counter affidavit has been filed but the same was not on record. The respondent was directed to place the counter affidavit on record and the matter was adjourned to 07.12.2021. On 07.12.2021, the matter was adjourned to 05.05.2022 due to paucity of time. On 05.05.2022, none appeared for the respondent. Thus, the Court issued a notice to the respondent through the Standing Counsel and adjourned the hearing of this petition to 16.11.2022. 5. On 16.11.2022, a fresh notice was issued to the respondent and the matter was directed to be listed before the learned Registrar for completion of service and pleadings on 16.12.2022. On 16.12.2022, learned counsel for the respondent appeared and once again stated that the counter affidavit has already been filed but the same was not on record. The learned Registrar then directed the respondent to take up the matter with the Registry and get the counter affidavit placed on record within a period of four weeks from the date and adjourned the matter to 29.03.2023. On 29.03.2023, a request was made by the learned counsel appearing for the respondent s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority. He submits that the applicability of principles of natural justice is not a rule of thumb or a straightjacket formula. He further submits that the present case is an admitted case where the petitioner has violated the provisions of the CGST Act. The petitioner had nothing more to argue than what was contended in the reply to the Show Cause Notice. The reply was considered by the Adjudicating Authority and a reasoned order had been passed and therefore, the petitioner cannot be allowed to contend that by not being granted an opportunity of personal hearing, the respondent has caused any prejudice to the rights of the petitioner, and same does not vitiate the principles of natural justice. Learned Counsel also relies upon the judgments passed by the Hon ble Apex Court in the case of National Highways Authority of India Ors. v. Madhukar Kumar Ors.: 2021 SCC OnLine SC 791; A.S. Motors Pvt. Ltd. v. Union of India Ors.: (2013) 10 SCC 114 and Maharashtra State Board of Secondary Higher Secondary Education v. K.S. Gandhi Ors.: (1991) 2 SCC 716, in support of his contention that the petitioner has to show the real prejudice being occasioned due to not following the princi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted its reply. The petitioner on the said date was asked to file its reply on the GST portal. The petitioner is stated to have filed the said reply on the GST portal on the said date. 15. It is significant that the petitioner in its reply dated 24.03.2021 also stated that it is submitted that any clarifications if required vis-avis aforementioned consultative Show Cause Notice dated 02.02.2021 will be appreciated. We also seek personal hearing in the matter . Surprisingly, the impugned order was passed the very next day and in relation to the request for personal hearing it was stated as under: Several representatives of the TP appeared in office of the undersigned for dropping of the proceedings. The same is being considered as Personal hearing as sought by the Noticee in last line of the reply dated 24.03.2021. Even the telephonic conversation with Mr. Virender Singh, Prop. Of the firm are equivalent to PH. Asking for more PH hearing at this stage is construed as dilatory tactics on part of the taxpayer for the reasons best known to the Proprietor. 16. It is a settled law that the applicability of principles of natural justice is not a straightjacket formula and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities cannot be allowed to contend to the contrary. The respondents contention that no personal hearing is required to be given to the party, is contrary to the statute. This Court is of the opinion that the department could not have taken such stand contrary to statutory framework. This is also because no affidavit has been filed by the respondent taking such stand. 20. Be that as it may, we also fail to understand the reason for the Adjudicating Officer to observe that the visit of the representatives of the petitioners in the office of the Officer and the telephonic conversation, the Officer had with the proprietor of the petitioner, could be termed as equivalent to personal hearing. It is not the respondent s case that hearings were conducted in a virtual mode and, therefore, the personal hearing was granted over the telephone. 21. It is also not a case that due to onset of the COVID-19 pandemic, it was not possible for the authorities to give a personal hearing. The petitioner disputes that any personal hearing was afforded through the telephonic conversation with the Officer. Despite opportunities, the respondent has failed to file any affidavit controverting th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng shall be granted where the request is received in writing, the same cannot be denied or be substituted by a telephonic conversation. It is also not a case of Revenue that the multiple adjournments were taken by the petitioner in order to delay the adjudication. 25. There is no cavil with the principles laid down by the Hon ble Apex Court in the judgments relied upon by the respondent. In the decisions cited by the learned Counsel for the respondents, the Hon ble Apex Court, had in the facts of those cases, concluded that the principles of natural justice were substantially complied with. It is also relevant to note that the decisions were not rendered in the context of statutes that expressly obliged the authorities to do a particular act in a particular manner. In these cases, the parties had complained about the violation of principles of natural justice in administrative decision making of the authorities and not about the decision been taken in violation of terms of a statute where the law specifically required a particular procedure to be followed. 26. Therefore, in the facts of the present case, there is a clear violation of the principles of natural justice. The o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase, the telephonic conversation which the Officer had with the proprietor of the petitioner, even before the final reply was filed, has been construed as personal hearings, such behaviour is clearly not acceptable. The Officer seems to be in some sort of hurry to conclude adjudication prior to the end of Financial Year on 31.03.2021 and passed the order, the very next day of filing of the reply. As discussed above, the same is clearly not only in violation of statutory principles of the Act but also is clear violation of the principles of natural justice. Alternate remedy 30. Even though no reply has been filed and the matter has been dragged for almost two years on account of the respondent taking time to file the counter affidavit, it was contended by the learned Counsel for the respondent that the present writ petition ought not to be entertained on account of an alternate remedy being available to challenge the impugned order. 31. The Constitution Bench of the Hon ble Apex Court way back in the year 1958 in State of Uttar Pradesh v. Mohd. Nooh: 1958 SCR 595 had held as under: 10. In the next place it must be borne in mind that there is no rule, with rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he writ petition as not maintainable. The availability of alternate remedy does not operate as a bar on the power of the High Court to exercise jurisdiction under Article 226 of Constitution of India. 34. The Hon ble Apex Court in the recent decision in the case of Godrej Sara Lee Ltd. v. Excise and Taxation Officer-cum-Assessing Authority and Others: 2023 SCC Online SC 95 held as under: 4. Before answering the questions, we feel the urge to say a few words on the exercise of writ powers conferred by Article 226 of the Constitution having come across certain orders passed by the high courts holding writ petitions as not maintainable merely because the alternative remedy provided by the relevant statutes has not been pursued by the parties desirous of invocation of the writ jurisdiction. The power to issue prerogative writs under Article 226 is plenary in nature. Any limitation on the exercise of such power must be traceable in the Constitution itself. Profitable reference in this regard may be made to Article 329 and ordainments of other similarly worded articles in the Constitution. Article 226 does not, in terms, impose any limitation or restraint on the exercise of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt on the ground that the petitioner has not availed the alternative remedy without, however, examining whether an exceptional case has been made out for such entertainment would not be proper. 35. Another aspect which is to be kept in mind is that the present writ petition was listed before this Court way back on 19.07.2021. No such objection seems to have been taken by the respondent pursuant to the direction to produce the record. The respondent, in order to justify its stand had also filed the record of the proceedings before this Court. The respondent, therefore, wasted almost two years of the judicial time in, firstly, on the pretext of seeking to place the Counter Affidavit, which was incorrectly claimed as filed on record, and secondly, by taking further time to file the said counter affidavit. The respondent, at this stage, after two years of the writ petition being filed, cannot be allowed to take such stand. 36. As discussed above, it is the respondent who has in fact admitted to the nature of hearing being given to the petitioner. In fact, no affidavit has been filed by the respondent to raise a plea that the present case involved disputed questions of fact. D ..... X X X X Extracts X X X X X X X X Extracts X X X X
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