Bombay High Court
Cart2India Online Retail Private ... vs Union Of India on 28 November, 2023
Author: G.S. Kulkarni
Bench: G. S. Kulkarni
2023:BHC-OS:13995 21.WPL25179_2023.DOC
Vidya Amin
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 25179 OF 2023
Cart2India Online Retail Pvt. Ltd. ... Petitioner
Versus
1. Union of India, through Secretary, Ministry of Finance ...Respondents
2. State Tax Officer & Anr.
Ms. Sweta Vijay Upadhyay with Ms. Chandni Tanna i/b. India Law Alliance,
for Petitioner.
Mr. Himanshu Takke, AGP for Respondent No.2.
_______________________
CORAM: G. S. KULKARNI &
JITENDRA JAIN, JJ.
DATED: 28 November, 2023
_______________________
ORAL JUDGMENT (Per G.S. Kulkarni, J.)
1. This petition under Article 226 of the Constitution of India is filed
assailing the order dated 26 July, 2023 passed by the State Tax Officer, Nodal
Division-12, Mumbai whereby the petitioner has been directed to pay tax along
with interest and penalty in the following terms:
"Therefore, on the basis of documents available with the department, Demand
order in form GST DRC-07 is issued as per following tax liability along with
interest and penalty.
Para Objection in brief Tax Interest Penalty Total
No.
75 IGST 1714148 1337035 342830 3394013
Less turnover shown in
CGST 64729 50489 10000 125218
GSTR 1 compared to
GSTR 8 (TCS) SGST 64729 50489 10000 125218
Total 1843606 1438013 362830 3644449
Hence, tax payable at Rs.1843606, where on interest u/s. 50 is
determined at Rs. 1438013 and penalty u/s. 73(9) and section 20 of IGST is
determined at Rs.362830/-. Total dues payable comes at Rs.3644449/-.
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You are, therefore, directed to pay the amount of tax, interest and penalty
as shown in the above table of Cumulative Demand within a period of 90 days,
as per Section 78 CGST/MGST Act, from the date of service of this order
failing which recovery proceedings shall be initiated against your
company/firm/business concern.
Place : Mumbai State Tax Officer
Date : 26.07.2023 Sakinaka_710
Nodal Division-12, Mumbai"
2. On behalf of the petitioner, it is contended that the impugned order is bad
and illegal, being in breach of the principles of natural justice, as no hearing was
granted to the petitioner. In support of such contentions, our attention is drawn
to the reply as submitted by the petitioner in Form GST DRC-06 dated 17
June, 2023 where the petitioner in Column 7 - Option for personal hearing,
tick marked "Yes" indicating that the petitioner intended a personal hearing. It
is contended that the petitioner received a telephone call on 5 July, 2023 that
the petitioner needs to attend the hearing on 7 July, 2023. No advance notice
in that regard was issued. Although the petitioner stated that he would appear
on 7 July, 2023 and the petitioner could not appear before the State Tax Officer.
It is contended that instead of giving a final opportunity by adjourning the
proceedings, nonetheless the State Tax officer has passed the impugned order.
3. The learned counsel for the petitioner submits that the petitioner has
valid grounds to be pursued including on the jurisdiction of the State Tax
Officer to not levy demand under the provisions of the IGST Act. It is thus
urged that the impugned order being in violation of the principles of natural
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21.WPL25179_2023.DOC
justice, needs to be quashed and set aside and an opportunity of a hearing be
made available to the petitioner and an appropriate order be passed by the State
Tax officer in accordance with law.
4. On the other hand, learned AGP supported the impugned order and
submitted that the petitioner was given sufficient opportunity, however, the
petitioner did not appear for hearing and eventually, the State Tax Officer had
passed the impugned order.
5. Having heard the learned counsel for the parties and having perused the
record, we find much substance in the contentions as urged on behalf of the
petitioner. This for two fold reasons, firstly, we have seen that the petitioner had
sufficiently indicated that the petitioner intended that a personal hearing be
granted to the petitioner. If that be so, in our opinion, merely because the
petitioner did not appear on 7 July, 2023, in the absence of a valid reason, it
should not have been presumed by the State Tax Officer that the petitioner is
not interested for hearing. We also find that no written notice in that regard was
issued adjourning the proceedings. We have also perused the impugned order.
It also does not consider the case of the petitioner even in the reply to the show
cause notice as submitted.
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6. In the above circumstances, taking an overall view of the matter, we are of
the considered opinion that interest of justice would require that the petitioner
be granted an opportunity of being heard after which an appropriate order be
passed by the State Tax Officer in accordance with law. We, accordingly, dispose
of this petition by the following order:
ORDER
(i) The impugned order dated 26 July, 2023passed by the State
Tax Officer is quashed and set aside. The proceedings are
remanded to the State Tax Officer to be decided in accordance with
law after granting an opportunity of a personal hearing to the
petitioner;
(ii) The petitioner, at the first instance, is directed to appear
before the authority on 8 December, 2023 at 2.30 p.m. Thereafter,
the State Tax Officer shall fix the appropriate date of hearing and to
that effect take an acknowledgment from the petitioner that the
petitioner would undertake to appear before the State Tax Officer
on such date. The State Tax Officer accordingly shall pass an
appropriate order in accordance with law after following due
procedure.
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(iii) Needless to observe that if despite such notice/undertaking,
the petitioner does not appear before the State Tax Officer, the State
Tax Officer is free to proceed further and pass an appropriate order
in accordance with law.
(iv) All contentions of the parties are expressly kept open.
7. Disposed of in the above terms. No costs.
(JITENDRA JAIN, J.) (G. S. KULKARNI , J.)
Signed by: Vidya S. Amin
28 November, 2023
Designation: PS To Honourable Judge
Date: 30/11/2023 17:57:42
