TMI Blog2024 (3) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... sivity and mitigating potential disparities or injustices. This is particularly significant in areas of law concerning rights, benefits, and entitlements, where the flexibility provided by or ensures that legal provisions can be applied in a manner that reflects the realities and complexities of human experiences. The significance of the word or'' in Section 75(4) of the UPGST Act, 2017 cannot be underestimated. The usage of the word or'' extends beyond its disjunctive function; it serves as a pivotal indicator of legislative intent regarding the necessity of providing an opportunity for personal hearing. By incorporating or'' into the statutory language, lawmakers explicitly delineate two distinct scenarios in which the opportunity of personal hearing must be afforded: either upon application by the individual subject to penalty or tax imposition, or in the event of contemplation of an adverse order. Personal hearing represents a fundamental aspect of procedural fairness and natural justice, ensuring that individuals have the opportunity to present their case, respond to allegations, and address any concerns or mitigating factors directly to the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bookings. Petitioner is duly registered with the GST department under under the Goods and Services Tax Act, 2017 (hereinafter referred to as the UPGST Act ). b. On 25.3.21, a notice was issued for the period December 2017 under section 74 of the UPGST Act. c. The reply could not be filed by the petitioner to the aforesaid notice. Subsequently on 7.7.21 an order under section 74(9) of the UPGST Act has been passed by the respondent No.2. DRC 07 has been issued by the respondent No.2 on 13.7.21. d. From perusal of the show cause notice, it is evident that no date, time and venue for personal hearing has been fixed and hence the order dated 7.7.21 passed under section 74 of the Act is in violation of principles of natural justice. e. Being aggrieved by the aforesaid order passed by respondent No.2 petitioner has filed an appeal before the responded No.3 and has also deposited 10% of disputed tax by way of pre-deposit. f. By the impugned order dated 16.12.22, responded No.3 has partly allowed the appeal filed by the petitioner and has deleted the supply estimated on the basis of catering of food by the petitioner during marriages amounting to 41,85,000/-. Responded No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s particularly significant in areas of law concerning rights, benefits, and entitlements, where the flexibility provided by or ensures that legal provisions can be applied in a manner that reflects the realities and complexities of human experiences. 8. In Commissioner of Sales Tax, Uttar Pradesh -v- The Modi Sugar Mills Ltd. , reported in, MANU/SC/0276/1960 , the Supreme Court affirmed that while interpreting taxing statutes, courts must look at the words used in the statute, and interpret a taxing statute considering what has been clearly expressed: .In interpreting a taxing statute, equitable considerations are entirely out of place. Nor can taxing statutes be interpreted on any presumptions or assumptions. The court must look squarely at the words of the statute and interpret them. It must interpret a taxing statute in the light of what is clearly expressed : it cannot imply anything which is not expressed; it cannot import provisions in the statutes so as to supply any assumed deficiency. 9. The significance of the word or'' in Section 75(4) of the UPGST Act, 2017 cannot be underestimated. The usage of the word or'' extends beyond its disj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. *** 12. It has also been admitted in the counter affidavit that except permitting the petitioner to reply to the show cause notice, opportunity of personal hearing has not been afforded to the petitioner. Thus the legislative mandate of Section 75(4) of the Act to the authorities to afford opportunity of hearing to the assessee i.e. to follow principles of natural justice, has been completely violated by the respondents while passing the impugned order. 13. The stand taken by the respondents in the counter affidavit that the writ petition is not maintainable as the petitioner has an alternative remedy of appeal under Section 107 of the Act, can also not be accepted inasmuch as it is settled law that availability of alternative remedy is not a complete bar to entertain a writ petition under Section 226 of the Constitution of India. Certain exceptions have been carved ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereafter, the explanation furnished may be rejected and demand created. 9. Not only such opportunity would ensure observance of rules of natural of justice but 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. Recently, in M/s Primeone Work Force Pvt. Ltd. v. Union of India , reported in 2024:AHC-LKO:3533-DB , the Division Bench of this Court, stated that an opportunity of hearing is mandatorily required to be given if tax and penalty are to be imposed: 6. Section 75(4) of the Act of 2017 specifically states 'or where any adverse decision is contemplated against such person'. 7. Since in the present cases, both tax and penalty are imposed against the petitioners and admittedly, an adverse decision is contemplated against the petitioners, therefore, under Section 75(4) of the Act of 2017, an opportunity of hearing was mandatorily required to be given by the department to the petitioners and merely marking the same as NO in the option cannot entitle the department to pass an order without giving any opportunity or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se is made and such an imputation casts a slur on the parties to the agreement to sell lead to the conclusion that before such an imputation can be made against the parties concerned, they must be given an opportunity to show cause that the undervaluation in the agreement for sale was not with a view to evade tax. It is, therefore, all the more necessary that an opportunity of hearing is provided. 35. From the aforesaid discussion, it becomes clear that the opportunity to provide hearing before making any decision was considered to be a basic requirement in the court proceeding. Later on, this principle was applied to other quasijudicial authorities and other tribunals and ultimately it is now clearly laid down that even in the administrative actions, where the decision of the authority may result in civil consequences, a hearing before taking a decision is necessary. It was, thus, observed in A.K. Kraipak case [(1969) 2 SCC 262] that if the purpose of rules of natural justice is to prevent miscarriage of justice, one fails to see how these rules should not be made available to administrative inquiries. In Maneka Gandhi v. Union of India [(1978) 1 SCC 248] also the appli ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
