TMI Blog2023 (11) TMI 1220X X X X Extracts X X X X X X X X Extracts X X X X ..... lity contained in said Section 73 read with Rule 142. The notice issued intimating discrepancy in the returns under Section 61 of the CGST/OGST Act dated 26.10.2022 under Annexure-2 and the order dated 31.01.2023 passed under Section 73 of the Act vide Annexure-1 cannot be sustained in the eye of law and the same are liable to be quashed and are hereby quashed - The matter is remanded to the Assessing Authority to proceed de novo from the stage of issuance of notice intimating the discrepancy in returns after scrutiny under Section 61 of the CGST/OGST Act by affording due opportunity of hearing to the petitioner. Petition disposed off by way of remand. - HONOURABLE ACTING CHIEF JUSTICE DR. B.R. SARANGI AND HONOURABLE MR JUSTICE MURAHARI SRI RAMAN For the Petitioner : Mr. Jagamohan Pattanaik, A. Pattanaik, S.K. Sahu, and J.R. Behera, Advocates For the opposite parties : Mr. Sunil Mishra, Standing Counsel (Commercial Tax Goods and Service Tax Organization) JUDGMENT DR. B.R. SARANGI, ACJ The petitioner, by way of this writ petition, seeks to quash the ex-parte order dated 31.01.2023 under Annexure-1 passed under Section 73 of the Central Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. The most significant feature of the matter is that Section 75(4) of the GST Act, 2017 makes it clear that in cases, where an adverse decision is taken by the Assessing Officer against the assessee, personal hearing is mandatory. Admittedly, in the assessment proceedings, pertaining to the assessment in question, no personal hearing was afforded to the petitioner. Therefore, the petitioner approached this Court in the present writ petition. 3. Mr. Jagamohan Pattanaik, learned counsel for the petitioner contended that the petitioner, a registered taxpayer, assigned with GSTIN 21AABAK1223B1ZQ under CGST/OGST Act, 2017, having place of business located at Jajanga, Bamebari, Keonjhar, deals in taxable supply of goods like manpower, recruitment agency, rent-a-cab operator, works contract, Cargo Handling Services, supply of tangible goods for use services as per the registration certificate granted in its favour under the CGST/OGST Act, 2017. The petitioner submitted its returns which were scrutinized and some discrepancies were pointed out by the authority. Accordingly, notice dated 26.10.2022 in Form GST ASMT-10 prescribed under Rule 99(1) of the Central Goods and Services Tax Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arbitrarily, illegally and contrary to the provisions of law. 3.2 To substantiate his contention, he relied on the decisions in the case of M/s. Godrej Sara Lee Ltd. v. The excise and Taxation Officer-cum-Assessing Authority others, 2023 LiveLaw (SC) 7; M/s Hitech Sweet Water Technologies Pvt. Ltd v. State of Gujurat, 2022 UPTC (Vol 112) 1760; Assistant Commissioner of State Tax v. M/s Commercial Steel Limited, 2021 SCC OnLine SC 884; M/s. B.L. Pahariya Medical Store v. State of U.P. and Another, Writ Tax No. 981 of 2023 disposed of on 22.08.2023 by Allahabad High Court; M/s. Mohini Traders v. State of U.P. and Another, Writ Tax No. 551 of 2023 disposed of 03.05.2023 by Allahabad High Court. 4. Mr. Sunil Mishra, learned Standing Counsel appearing for Revenue emphatically submitted that since the petitioner did not comply with the terms of notice issued under Section 61 of the CGST/OGST Act read with Rule 99 of the CGST/OGST Rules, the authority has proceeded to determine the tax liability under Section 73 of the Act and passed order accordingly. The petitioner was directed to comply with the demand determined in the order dated 31.01.2023. It is further contended that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the undersigned on the date and time mentioned in the summary of the show cause notice issued in FORM GST ASMT-10. While showing cause, you are also required to produce/upload all the evidence upon which he intended to rely in support his defence along with his reply in form ASMT-II within THIRTY days. If you failed to submit the same or the reason submitted by you are found to be not acceptable then proceeding U/S 73/74 of CGST/OGST Act will be initiated against you. If you pay the tax along with up-to-date interest till the date of payment in form DRC-03 against the show cause notice, proceeding in respect of this show cause notice shall be deemed to be concluded as per the provisions U/s 73 (8) of the CGST OGST Act. The undersigned deserves the right to add, amend, delete or modify in part, portion of this notice and such addition amendment, deletion or modification, if any as per the provisions made under section 161 of the CGST/OGST Act 2017 made shall be deemed to the part and parcel of this notice. 7. Accordingly, the proceeding under Section 73 of the Act was stated to have been initiated and the order impugned dated 31.01.2023 under Annexure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en it should be decided by the High Court instead of dismissing the writ petition on the ground of an alternative remedy being available. Therefore, unless the discipline of adhering to decisions made by the higher authorities is maintained, there would be utter chaos in administration of tax laws apart from undue harassment to the assesses. 11. The High Court of Allahabad in the case of B. L. Pahariya Medical Store (supra) held that the assessee is not required to request for opportunity of personal hearing and it remained mandatory upon Adjudicating Authority to afford such opportunity before passing an adverse order because personal hearing would not only ensure observance of rules of natural of justice but also it would allow the authority to pass appropriate and reasoned order as may serve the interest of justice and allow a better appreciation to arise at the next/appeal stage, if required. 12. Similar view has also been taken in the case of Mohini Traders (supra), wherein the very same Allahabad High Court held that, it is mandatory to provide opportunity of personal hearing even if the assessee has opted No on the against column description Date of person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke the corrective measure in his return for the month in which the discrepancy is accepted, the proper officer may initiate appropriate action including those under Section 65 or Section 66 or Section 67, or proceed to determine the tax and other dues under Section 73 or Section 74. In the present case, the authority chose to initiate action under Section 73. Therefore, she was required to adhere to the modality contained in said Section 73 read with Rule 142. 15. In view of the above, the notice issued intimating discrepancy in the returns under Section 61 of the CGST/OGST Act dated 26.10.2022 under Annexure-2 and the order dated 31.01.2023 passed under Section 73 of the Act vide Annexure-1 cannot be sustained in the eye of law and the same are liable to be quashed and are hereby quashed. The matter is remanded to the Assessing Authority to proceed de novo from the stage of issuance of notice intimating the discrepancy in returns after scrutiny under Section 61 of the CGST/OGST Act by affording due opportunity of hearing to the petitioner. 16. With the above observation and direction, the writ petition stands disposed of. However, there shall be no order as to costs. M.S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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