Harsiddhi Enterprise vs State Of Gujarat
2023 Latest Caselaw 1862 Guj

     C/SCA/19962/2022                             JUDGMENT DATED: 23/02/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 19962 of 2022


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.J.DESAI

and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
==========================================================

1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

==========================================================
                          HARSIDDHI ENTERPRISE
                                  Versus
                            STATE OF GUJARAT
==========================================================
Appearance:
NANAVATI & CO.(7105) for the Petitioner(s) No. 1
MR ADITYA DAVDA ADDL. GOVERNMENT PLEADER for the
Respondent(s) No. 1
MR UTKARSH R SHARMA(6157) for the Respondent(s) No. 2,3
==========================================================

    CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
          and
          HONOURABLE MS. JUSTICE NISHA M. THAKORE

                              Date : 23/02/2023

                     ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE A.J.DESAI)

1. Rule. Mr. Aditya Davda, learned AGP waives service of Rule

C/SCA/19962/2022 JUDGMENT DATED: 23/02/2023

on behalf of the respondent No.1 and 3 and Mr. Utkarsh Sharma,

learned senior standing counsel waives service of Rule on behalf

of the respondent No.2.

2. With the consent of learned advocates appearing for the

parties, the matter is taken for final disposal.

3. By way of present petition preferred under Article 226 of the

Constitution of India, the petitioner has prayed for the reliefs as

under:

"(a) To issue a writ in the nature of certiorari and or any other appropriate writs, order or direction for calling of records of proceedings initiated pursuant to show cause notice dated 24.01.2022 and after perusing the same be pleased to quash and set aside show cause notice dated 24.01.2022 and order dated 16.02.2022 passed thereon by Superintendent, Ghatak 23, Ahmedabad, and be further pleased to direct restoration of registration bearing number 24BIHPB4985P1ZQ;

(b) To pass an ex-parte ad interim order staying the operation, execution and implementation of the order dated 16.02.2022 bearing reference No.ZA240222077155V passed by the Superintend, Ghatak 23, Ahmedabad, pending the hearing and final disposal of present petition;"

4. In response to the notice issued by this Court, the

C/SCA/19962/2022 JUDGMENT DATED: 23/02/2023

respondents have appeared through their advocates, however, no

reply has been filed.

5. Short facts emerges from the records are as under:

5.1 The petitioner is a proprietorship firm and registered under

the provisions of Central Goods and Service Tax act, 2017, having

service tax identification No.24BIHPB4985P1ZQ.

5.2 A show cause notice was was issued on 18.11.2021, stating

that registration has been obtained by means of fraud, willful

misstatement or suppression of facts. However, no reasons have

been assigned in the said notice. The Authority has passed the

order on 07.12.2021 without giving opportunity of hearing to the

petitioner. Thereafter, an application was filed by the petitioner for

revocation of the said order by which the registration was

cancelled. The order for revocation was passed on 24.01.2022.

5.3 Once again, the show cause notice was issued on

24.01.2022 and on the same day i.e. on 24.01.2022 calling upon

the petitioner to appear before the Authority at 02:10 p.m.

Thereafter, the impugned order has been passed.

C/SCA/19962/2022 JUDGMENT DATED: 23/02/2023

6. Mr. Kishan Patel, learned advocate for Nanavati & Co. for

the petitioner submits that reasons assigned by the Authority for

cancellation of registration is otherwise beyond the scope of

notice. He therefore, submits that the order impugned be quashed

and set aside.

7. On the other hand, Mr. Utkarsh Sharma, learned senior

standing counsel for the respondent Department has opposed this

application.

8. We have heard learned advocates for the parties and

perused the petition. The contentions raised by the petitioner,

which have not been controverted by the respondents by filing any

affidavit-in-reply. It appears from the show cause notice which was

issued on 24.01.2022, the petitioner was asked to remain present

at the same day i.e. 24.01.2022 at around 2:10 p.m. We are

therefore, of the opinion that the order could not have been passed

by the Authority as sufficient time ought to have been granted to

the petitioner to defend its case for personal hearing. We could

notice that the order has been passed relying upon only reply

C/SCA/19962/2022 JUDGMENT DATED: 23/02/2023

responding the grounds raised in the show cause notice, whereas

the order has been passed for the reasons for which the petitioner

was never called upon to answer. Hence, we are of the opinion

that the petition requires consideration. Hence, the petition is

allowed.

9. It is needless to say that the respondent authorities may

issue fresh show cause notice and pass appropriate order in

accordance with law after giving opportunity of hearing to the

petitioner. Rule is made absolute.

10. It is expected that the authority shall pass the order in

accordance with law and after considering the judgment passed by

the Division Bench of this Court in Special Civil Application

No.18860 of 2021 and allied matters.

(A.J.DESAI, J)

(NISHA M. THAKORE,J) Y.N. VYAS