Delhi High Court
Sun & Sand Industries Africa Pvt. Ltd vs Sales Tax Officer Class-Ii/Avato ... on 24 April, 2024
Author: Sanjeev Sachdeva
Bench: Sanjeev Sachdeva
$~62
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 24.04.2024
W.P.(C) 5670/2024 & CM APPL. 23433/2024
SUN & SAND INDUSTRIES AFRICA PVT. LTD
.....Petitioner
versus
SALES TAX OFFICER CLASS-II/AVATO DEPARTMENT OF
TRADE AND TAXES ..... Respondent
Advocates who appeared in this case:
For the Petitioner: Ms. Anjali Jha Manish, Mr. Priyadarshi Manish
and Ms. Divya Rastogi, Advocates.
For the Respondent: Mr. Rajeev Aggarwal, ASC.
CORAM:-
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
HON'BLE MR. JUSTICE RAVINDER DUDEJA
JUDGMENT
SANJEEV SACHDEVA, J. (ORAL)
1. Petitioner impugns order dated 19.12.2023 whereby the impugned
Show Cause Notice dated 23.09.2023, proposing a demand of
Rs.15,19,68,460.00/- against the petitioner had been disposed of and
demand including penalty has been raised against the petitioner. The order
has been passed under Section 73 of the Central Goods and Services Tax
Act, 2017 (hereinafter referred to as the Act).
2. Issue notice. Notice is accepted by learned counsel appearing for
respondent. With the consent of the parties, petition is taken up for final
disposal today.
3. Perusal of the Show Cause Notice dated 23.09.2023 shows that the
Department has given reasons under separate headings i.e., excess claim of
Input Tax Credit ["ITC"]; Scrutiny of ITC availed and under declaration of
ineligible ITC.
4. Learned counsel for Petitioner submits that Petitioner had replied to
the impugned Show Cause Notice on 23.10.2023 seeking additional time
for furnishing a detailed reply and an opportunity of personal hearing. She
further submits that a reminder dated 12.12.2023 was issued to the
Petitioner providing a final opportunity for personal hearing. Pursuant to the
said reminder, Petitioner had replied to the reminder on 18.12.2023 seeking
time to furnish reply and time to appear for personal hearing. However, the
impugned order dated 19.12.2023 does not take into consideration the
request submitted by the Petitioner for extension of time and is a cryptic
order.
5. The impugned order dated 19.12.2023 after recording the narration,
records that a demand as ex-parte is created. It states "And whereas, it is
noticed that the Taxpayer filed reply but the reply does not consist any
explanation of show cause notice nor supported with any documents in this
regards. Further, No one appeared for Personal Hearing before the
undersigned on the given date and time, And whereas another opportunity
to submit reply and personal Hearing given to the taxpayer firm for the
sake of natural justice, as per provision of Section 75(4) DGST Act, by
issuing "REMINDER" through the GST portal. The taxpayer sought 4
weeks time whereas no explanation to SCN received from the taxpayer firm
despite sufficient and repeated opportunities, being a time-bound matter, I
am left with no other option to proceed ex-parte." The Proper Officer has
opined that despite providing another opportunity, neither an online reply
has been filed nor has the petitioner appeared in person or through an
authorized representative.
6. Further, placing reliance on Section 75(5) of the Act, learned counsel
for Petitioner submits that according to the said Section, Petitioner is liable
for grant of adjournment of personal hearings up to three times. However,
despite the Petitioner seeking time for personal hearings on 23.10.2023 and
18.12.2023, the Petitioner was not provided an opportunity of personal
hearing which is against the principles of natural justice.
7. Per Contra, learned counsel for Respondent opposing the said
submission submits that no detailed reply was filed by the Petitioner and
despite two opportunities having been granted to the Petitioner, Petitioner
failed to file a detailed reply or appear in person.
8. Reference may be had to Section 75(5) of the Act, which reads as
follows:
"Section 75(5): The proper officer shall, if sufficient cause
is shown by the person chargeable with tax, grant time to
the said person and adjourn the hearing for reasons to be
recorded in writing: Provided that no such adjournment
shall be granted for more than three times to a person
during the proceedings."
9. Section 75 (5) of the Act stipulates that, if sufficient cause is shown,
the proper officer shall adjourn the hearing, however, not more than three
adjournments may be granted.
10. Though in terms of Section 75 (5) of the Act three adjournments
maybe granted, it is not mandatory for the proper officer to grant three
adjournments. Adjournment is not a right. Said provisions empowers the
proper officer to grant upto three adjournments, if sufficient cause is shown.
It would be dependent on the facts of each case whether sufficient cause has
been shown or not for exercise of the discretion to adjourn.
11. Be that as it may, in the present case, we notice that the order is a
cryptic order and a prayer is made on behalf of petitioner for one
opportunity to file reply, accordingly we set aside the impugned order dated
19.12.2023 and the show cause notice is remitted to the proper officer for
re-adjudication
12. Petitioner shall file a reply to the Show Cause Notice within a period
of 30 days from today. Thereafter, the Proper Officer shall re-adjudicate the
Show Cause Notice after giving an opportunity of personal hearing and
shall pass a fresh speaking order in accordance with law within the period
prescribed under Section 75 (3) of the Act.
13. It is clarified that this Court has neither considered nor commented
upon the merits of the contentions of either party. All rights and contentions
of parties are reserved.
14. Petition is disposed of in the above terms.
SANJEEV SACHDEVA, J
RAVINDER DUDEJA, J
APRIL 24, 2024/vp
