Allahabad High Court
M/S Jagdish Trading Company vs State Of U.P. And Another on 1 October, 2024
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:161160-DB
Court No. - 39
Case :- WRIT TAX No. - 1641 of 2024
Petitioner :- M/S Jagdish Trading Company
Respondent :- State of U.P. and Another
Counsel for Petitioner :- Ravi Pratap Singh,Tanmay Sadh
Counsel for Respondent :- C.S.C.
Hon'ble Saumitra Dayal Singh,J.
Hon'ble Donadi Ramesh,J.
1. Heard Shri Tanmay Sadh, learned counsel for the petitioner and Shri Nimai Das, learned Additional Chief Standing Counsel.
2. This is a writ petition under Article 226 of the Constitution of India wherein the writ petitioner is aggrieved by the order dated 9.4.2024 passed by the respondent No.1 under Section 73 of the Uttar Pradesh Goods and Services Tax Act, 2017.
3. We have heard counsel appearing on behalf of the parties.
4. The factual matrix is such that the matter is squarely covered by a coordinate Bench judgment of this Court in Mahaveer Trading Company vs. Deputy Commissioner State Tax and another [(Writ Tax No.303 of 2024), Neutral Citation No.-2024:AHC:38820-DB]. Relevant portion of the aforesaid judgment is delineated below:
"10. On query made, the learned Additional Chief Standing Counsel fairly submits, in light of similar occurrences, noticed in other litigation, he had apprised the Commissioner, Commercial Tax. In turn, the Commissioner, Commercial Tax, Uttar Pradesh, has issued Office Memo No. 1406 dated 12.11.2024. The same has been addressed to all Additional Commissioner to be communicated to all field formations for necessary compliance. A copy of the same has been made available to this Court. It reads as below:
"1. The column in which date of personal hearing has to be mentioned, only N.A. is mentioned without mentioning any date.
2. The column in which time of personal hearing has to be mentioned, only N.A. is mentioned without mentioning time of hearing.
3. In some cases, the date of personal hearing is prior to which reply to the Show Cause Notice has to be submitted this is non-est and this practice has to be discontinued. The date of reply to the Show Cause Notice has to be definitely prior to the date of personal hearing.
4. In some cases, the date of personal hearing is on the same date to which reply to the Show Cause Notice has to be submitted-this is non-est and this practice has to be discontinued. The date of reply to the Show Cause Notice has to be definitely prior to the date of personal hearing.
5. In all cases observed, the date of passing order either u/s 73(9)/74(9) etc. of the Act is not commensurate to the date of personal hearing. It is trite law that the date of the order has to be passed on the date of personal hearing. For eg.,the date of furnishing reply to SCN is 15.11.2023 and date of personal hearing is 17.11.2023, then the date of order has to be 17.11.2023."
11. In view of the facts noted above, before any adverse order passed in an adjudication proceeding, personal hearing must be offered to the noticee. If the noticee chooses to waive that right, occasion may arise with the adjudicating authority, (in those facts), to proceed to deal with the case on merits, ex-parte. Also, another situation may exist where even after grant of such opportunity of personal hearing, the noticee fails to avail the same. Leaving such situations apart, we cannot allow a practice to arise or exist where opportunity of personal hearing may be denied to a person facing adjudication proceedings.
12. Thus, the impugned order cannot be sustained in the eyes of law. It has been passed in gross violation of fundamental principles of natural justice. The self imposed bar of alternative remedy cannot be applied in such facts. If applied, it would be of no real use. In fact, it would be counter productive to the interest of justice. Here, it may be noted, the appeal authority does not have the authority to remand the proceedings."
5. Upon a perusal of record, it appears that the factual matrix is very similar to one in Mahaveer Trading Company's (supra). We do not see any reason to take a different stand.
6. Accordingly, the impugned order dated 9.4.2024 is quashed and set-aside with a direction given to the officer concerned to grant the petitioner another opportunity of filing a fresh reply and thereafter fix a date of hearing and pass a reasoned order. The entire exercise should be completed within a period of two months from date.
7. The writ petition is disposed of. However, we also take note of the fact of the malpractices as set in in the department has yet not been cured. Despite specific assurances being given to us on clear occasions, Shri Nimai Das states that, his office is seeking a meeting with the Commissioner on the issue and he assures that the problem will be addressed immediately atleast now.
Order Date :- 1.10.2024
Prakhar
(Donadi Ramesh, J.) (S.D. Singh, J.)
