TMI Blog2024 (1) TMI 807X X X X Extracts X X X X X X X X Extracts X X X X ..... sh in accordance with law after affording reasonable opportunity of hearing to the petitioner/appellant. Article 226 of the Constitution of India confers very wide powers on High Courts to issue writs but this power is discretionary and the High Court may refuse to exercise the discretion if it is satisfied that the aggrieved person has adequate or suitable remedy elsewhere. It is a rule of discretion and not rule of compulsion or the rule of law. Even though there may be an alternative remedy, yet the High Court may entertain a writ petition depending upon facts of each case. It is neither possible nor desirable to lay down inflexible rule to be applied rigidly for entertaining a writ petition. The impugned order dated 25.03.2021 for the period from April 2018 to March 2019 passed by the Assistant Commissioner of State Tax (GST), Jalpaiguri Charge under Section 73 of the WBGST Act, 2017 and CGST Act, 2017, cannot be sustained and is hereby quashed - Matter is remitted back to the proper officer/Assistant Commissioner of State Tax (GST) Jalpaiguri charge to pass an order afresh in accordance with law under Section 73 of the WBGST Act, 2017/CGST Act, 2017, after affording rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal under Section 107 of the Act 2017 but without exhausting that remedy the writ petitioner had filed the writ petition and after being unsuccessful, he has filed the present appeal. Therefore, the appeal deserves to be dismissed on the ground of alternative remedy. 5. We have carefully considered the submissions of learned Advocates for the parties and perused the record of the appeal. 6. Briefly stated facts of the present case are that the appellant/petitioner is a proprietorship concerned engaged in the trade of Timber and registered under the WBGST/CGST Act, 2017. He has filed its return regularly. A notice under Section 73(5) of the Act, 2017 dated 11.12.2020 was issued by the Assistant Commissioner of State Tax, Jalpaiguri Charge, for the financial year 2018-19, on the ground that there is some mismatch between FORM GSTR-7 and STR-3B for the financial year 2018-19. The aforesaid notice was followed by a show cause notice dated 15.01.2021 under Section 73 of the Act 2017. From bare perusal of the notice, it is evident that neither any date, time or place of hearing was fixed nor any personal hearing was intended to be afforded. Thereafter, the Assistant Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on chargeable with tax or penalty or where any adverse decision is contemplated against such person. 8. Section 75(4) of the Act, 2017 reads as under: granted where a request is received in writing from the person chargeable with tax or penalty, or where any adverse decision is contemplated 9. From perusal of Section 75(4) of the Act, 2017 it is evident that opportunity of hearing has to be granted by authorities under the Act, 2017 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 the person, such a person even 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 an order adverse to such person. 11. Considering the facts and circumstances of the present case, the provisions of Section 73 read with Section 75(4) of the WBGST/CGST Act, 2017, we are of the view that proper officer is bound to afford an opportunity of hearing where either a request in writing is received by him from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pted. (vi) Where Tax is levied without authority of law. (vii) Where decision is an abuse of process of law. (viii) Where palpable injustice shall be caused to the petitioner, if he is forced to adopt remedies under the statute for enforcement of any fundamental rights guaranteed under the Constitution of India. (ix) Where a decision or policy decision has already been taken by the Government rendering the remedy of appeal to be an empty formality or futile attempt. (x) Where there is no factual dispute but merely a pure question of law or interpretation is involved. (xi) Where show cause notice has been issued with preconceived or premeditated or closed mind. 14. The above principles are supported by the law laid down by Hon'ble Supreme Court in the cases of Himmatlal Harilal Mehta v. State of Madhya Pradesh, AIR 1954 SC 403, Collector of Customs v. Ramchand Sobhraj Wadhwani, AIR 1961 SC 1506, Collector Of Customs Excise, vs A. S. Bava, AIR 1968 SC 13, Dr. Smt. Kuntesh Gupta vs Management Of Hindu Kanya Mahavidyalaya, L.K. Verma v. HMT Ltd. and anr., (2006) 2 SCC 269, Paras 13 and 20, M.P. State Agro Industries Development Corpn. Ltd. Anr. vs. Jahan Kh ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
