Page No.# 1/8 vs The State Of Assam And 2 Ors on 13 March, 2026

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                              Page No.# 1/8

GAHC010050342026




                                                                        2026:GAU-AS:3739

                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : WP(C)/1482/2026

            JATAN SAHA




            VERSUS

            THE STATE OF ASSAM AND 2 ORS.


            2:THEE PRINCIPAL COMMISSIONER
             STATE TAX
             KAR BHAWAN
             G.S. ROAD
             DISPUR
             GUWAHATI-781006

            3:THE ASSISTANT COMMISSIONER OF STATE TAX
             HOJAI-1
            ASSA




                                       BEFORE
                        HONOURABLE MR. JUSTICE DEVASHIS BARUAH

For the Petitioner(s)            : Mr. R.S. Mishra, Advocate


For the Respondent(s)            : Mr. B. Choudhury, Standing Counsel
                                                                     Page No.# 2/8

      Date on which judgment was reserved : NA

      Date of pronouncement of judgment     : 13.03.2026

      Whether the pronouncement is of the
      Operative part of the judgment?       : NA

      Whether the full judgment has been
      pronounced?                           : Yes



                                        JUDGMENT AND ORDER (ORAL)

Heard Mr. R.S. Mishra, the learned counsel appearing on behalf of the petitioner. Mr. B. Choudhury, the learned Standing Counsel appears on behalf of the respondent Nos. 1 to 3.

2. Taking into account the issue involved in the present writ petition, this Court, with the consent of the parties, takes up the instant writ petition for disposal at the Motion stage itself.

3. The materials on record show that the petitioner is registered under the provisions of the Central Goods and Services Tax Act, 2017. On 25.07.2025, a show cause notice was issued to the petitioner for the financial year 2024-25 under Section 73(1) of the Assam Goods and Services Tax Act, 2017 (for short, "the State Act"), wherein it was mentioned that the petitioner had shown Rs. 1,90,77,696/- as the turnover in GSTR-3B, whereas the TDS turnover as per GSTR-7 was Rs. 2,94,55,917/- and as such, there was a suppressed turnover of Rs. 1,03,78,220.40. It was further mentioned that, in view of the Page No.# 3/8

suppressed turnover, the petitioner was required to show cause on or before 24.08.2025 as to why tax, interest, and penalty should not be levied under Section 73 of the State Act.

4. At this stage, it is pertinent to take note of the submission made by the learned counsel appearing on behalf of the petitioner that the notice could not have been issued under Section 73 of the State Act, as the allegations therein pertain to suppressed turnover and, as such, the Respondent Authorities did not have the authority to pass the order under Section 74A of the State Act.

5. It is a settled principle of law that mere wrong quoting of a provision would not nullify an action if the contents initiating the action and the action so taken are in consonance.

6. In the instant case, it is apparent from the show cause notice that, taking into account that the steps were being taken in respect to the financial year 2024-25, the notice ought to have been issued under Section 74A of the State Act. The contents of the notice, however, make it very clear that the case falls within the ambit of Section 74A of the State Act. Under such circumstances, the mere quoting of Section 73 of the State Act in the notice would not nullify the entire proceedings.

7. This Court further finds it relevant to take note of that pursuant Page No.# 4/8

to the said show cause notice, the petitioner did not file any reply and, accordingly, vide an order dated 15.09.2025, the impugned order was passed under Section 74A(5) of the State Act.

8. The petitioner has alleged that, irrespective of the fact that the petitioner had not submitted a reply, it was then also incumbent upon the Respondent Authorities to provide the petitioner an opportunity of hearing, as it is the mandate of Section 75(4) of the State Act. The learned counsel appearing on behalf of the petitioner referred to the decision of this Court in the case of Construction Catalysers Private Limited Vs. The State of Assam & Others reported in (2025) 2 GLR 85 wherein, at paragraph No. 28, this Court categorically held that even in a case where no reply is filed, the proper officer can pass an adverse order only after providing an opportunity of hearing.

9. This Court has also heard Mr. B. Choudhury, the learned Standing Counsel appearing on behalf of the respondents, who submitted that the petitioner knew about the said show cause notice and failed to submit a reply. As such, the petitioner cannot assail the impugned order dated 15.09.2025 by filing a writ petition. The learned Standing Counsel further submitted that the petitioner has an alternative remedy under Section 107 of the State Act and the petitioner having not availed the alternative remedy cannot approach this Court.

10. This Court had given an anxious consideration to the respective Page No.# 5/8

submissions made by the parties and perused the materials on record.

11. It is relevant to take note of that the notice was issued on 25.07.2025, categorically mentioning that it was for the financial year 2024-25. Section 73 of the State Act makes it very clear that the proceedings under Section 73 of the State Act are applicable for the period up to the financial year 2023-24. It may have been the assumption of the petitioner that the said notice could not have been issued at all, taking into account that Section 73 of the State Act, after the amendment by the Assam Goods and Services Tax (Amendment) Act, 2025 which was notified on 13.06.2025 only to proceedings up to the financial year 2023-24.

12. Be that as it may, as observed hereinabove, the wrong quoting of a Section would not take away the jurisdiction of the authority if, from the contents of the said notice, it can be discerned that the action was actually taken in exercise of the powers under Section 74A(1) of the State Act. However, the petitioner having not filed a reply, the Respondent Authorities were still under an obligation to provide an opportunity of hearing by fixing a date of hearing in the said show cause notice itself.

13. A perusal of the show cause notice, which is enclosed as Annexure-B to the writ petition reveals that the petitioner was only asked to submit a reply on or before 24.08.2025, and there is no Page No.# 6/8

mention that the petitioner would be afforded an opportunity of hearing. At this stage, this Court finds it pertinent to take note of the judgment of this Court in the case of Construction Catalysers Private Limited (supra) wherein at paragraph No. 28, this Court categorically observed that de hors the fact that no reply is filed, an opportunity of hearing has to be provided. Paragraph No. 28 of the said judgment being relevant, is reproduced herein under:

"28. This Court is of the opinion that when the statute is clear to provide an opportunity of hearing, there is a requirement of providing such opportunity. In fact a perusal of the Form GST DRC-01 enclosed to the writ petitions shows details have been given as regards the date by which the reply has to be submitted; date of personal hearing; time of personal hearing and venue of personal hearing. It is seen that in the Summary of the Show Cause Notice only the date for submission of reply has been mentioned. In respect to other details as stated above have been mentioned to as 'NA'. It may be that the Proper Officer assumed that based on the reply he/she may proceed with the adjudication depending as to whether the person to whom the notice is issued had opted for personal hearing or not. But in a case where no reply is filed, a question arises whether the Proper Officer can pass an adverse order without providing an opportunity for hearing. The answer has to be in the negative else it would render the second part of Section 75 (4) redundant."

14. From a perusal of the above quoted paragraph, it would be seen that even when a reply is not filed, it is still incumbent upon the proper officer to fix a date for hearing. The same having not been done has taken away a valuable safeguarded right of the petitioner under Section 75(4) of the State Act.

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15. Consequently, this Court disposes of the instant writ petition with the following observations and directions:

(i) The notice dated 25.07.2025 shall be deemed to be a notice under Section 74A of the State Act.

(ii) Taking into account that the petitioner, under the apprehension that the notice dated 25.07.2025 could not have been issued under Section 73(1) of the State Act, did not submit a reply, an opportunity is required to be given to the petitioner to submit the reply within 7 (seven) days from the date of the present order. Accordingly, the petitioner is granted liberty to submit a reply alongwith such other documents as the petitioenr deems proper to the notice dated 25.07.2025. The said reply be submitted on or before 23.03.2026.

(iii) The Respondent Authorities, more particularly the respondent No. 3, is directed to fix a date for hearing either on the date on which the petitioner submits the reply as per the liberty granted hereinabove or on 23.03.2026, the last date fixed for submission of the reply. Thereupon, the respondent No. 3 shall proceed with the disposal of the proceedings under Section 74A of the State Act in accordance with law.