Sm/S. Sree Constructions, vs The Assistant Commissioner St,
2022 Latest Caselaw 1358 AP

Citation : 2022 Latest Caselaw 1358 AP
Judgement Date : 21 March, 2022

Andhra Pradesh High Court - Amravati

Sm/S. Sree Constructions, vs The Assistant Commissioner St, on 21 March, 2022

     THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
                                AND
        THE HON'BLE SMT. JUSTICE V. SUJATHA

               Writ Petition No.24955 of 2021


ORDER:- (per the Hon'ble Sri Justice C. Praveen Kumar)


       Heard Sri G. Narendra Chetty, learned counsel for the

petitioner and learned Government Pleader for Commercial

Taxes and with their consent the Writ Petition is disposed off

at the admission stage.


2.    The Order of Assessment No.ZH370720OD77052, dated

09.07.2020 and the Rectification Order, dated 25.07.2020

passed by the respondent no.1 under the A.P.G.S.T. Act,

2017, for the Tax periods July, 2017 to June, 2019, imposing

Tax, Penalty and Interest as violative of principles of natural

justice, the present Writ Petition came to be filed.

3. The averments made in the affidavit filed, in support of

the Writ Petition, are that:-

(a) The petitioner executed certain works entrusted to it

by M/s.TATA Projects Limited, and issued Tax Invoices to

M/s.TATA Projects Limited. It is said that as per the terms of

the agreement, the said Contractee has to pay Service Tax on

the same to the petitioner on issue of Tax Invoices by the

petitioner. Though, the petitioner issued Tax Invoices, the

Contractee failed to pay G.S.T. amounts to the petitioner and

CPK, J & VS, J W.P.No.24955 of 2021

withheld the same due to which the petitioner could not file

its returns and pay the Taxes as the G.S.T. Portal will not

accept the returns unless accompanied by payment of Taxes.

(b) It is said that the total G.S.T. liability for the works

executed for the petitioner during the tax period is about

Rs.1,85,84,695/-. A Garnishee Notice dated 11.09.2020,

came to be issued to the Contractor stating that the

petitioner has failed to pay Taxes, Penalty and Interest under

the G.S.T. Act and directed them to pay the said amount. On

coming to know about the order of the Assessment passed by

the authority, the petitioner filed the present Writ Petition

mainly on the ground that an opportunity of hearing should

have been granted to the petitioner in terms of Sub-Section

(4) of Section 75 of the SGST Act, 2017. He placed reliance

on the judgment of this Court in W.P.No.9162 of 2021, dated

28.04.2021 in support of the same.

4. Sri G. Narendra Chetty, learned counsel for the

petitioner though raised various grounds would submit that

since no opportunity of hearing was given, the matter to be

remanded back to the Assessing Authority as it came to be

passed in violation of principles of natural justice.

5. Sri Y.N. Vivekananda, learned Government Pleader for

Commercial Taxes, would submit that though the

Assessment Order was passed in the month of July, 2020,

CPK, J & VS, J W.P.No.24955 of 2021

the petitioner did not approach this Court within a

reasonable time. He further submits that he approached this

Court only after issuance of Garnishee Notice and long

thereafter, the present Writ Petition is filed. He further

submits that having regard to the orders passed by the

Hon'ble Supreme Court, extending the period of limitation,

the petitioner can avail the remedy of appeal as provided

under Section 107 of the C.G.S.T. Act, 2017

6. It is no doubt true that the order was passed in the

month of July, 2020 and the Writ Petition was filed in the

month of October, 2021. The reason given by the petitioner

is that due to pandemic, he could not avail the remedy at the

earliest. He further submits that in view of the orders passed

by the Hon'ble Supreme Court extending the period of

limitation, approaching this Court in the year 2021 cannot be

said to be with delay. Infact, in W.P.No.9162 of 2021 relied

upon by the learned counsel for the petitioner, similar such

objection was raised, but the same was not accepted having

regard to the violation of Section 74 of C.G.S.T. Act, which we

will discuss now.

7. Sub- Section (4) of Section 75 of the Act, reads as

under:-

"An opportunity of hearing shall be granted where a request is received in writing from the person chargeable with tax or

CPK, J & VS, J W.P.No.24955 of 2021

penalty, or where any adverse decision is contemplated against such person."

8. It is very much evident that an opportunity of hearing is

required to be given where a request was made in writing to

the person chargeable with taxes and penalty or where any

adverse decision is contemplated against such person.

Therefore, when the authority contemplates to pass an

adverse order against any assessee, an opportunity of

hearing is required to be given. Failure to do so, in our view,

amounts to violation of principles of natural justice. In the

instant case, admittedly no notice was given to the petitioner

before contemplating to pass an adverse order. Such a

course of caution is prejudicial to the interest of assessee and

the same would be in violation of Sub-Section (4) of Section