Jose Paul vs State Tax Officer
2023 Latest Caselaw 10022 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
             THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
         MONDAY, THE 18TH DAY OF SEPTEMBER 2023 / 27TH BHADRA, 1945
                           WP(C) NO. 29096 OF 2023
PETITIONER/S:
           JOSE PAUL, PROPRIETOR, ALPHA AGENCIES, CHAPPARA,
           KODUNGALOOR, THRISSUR DISTRICT, PIN - 680664

              BY ADVS. TOMSON T.EMMANUEL
              JENSON FRANCIS PAYANKAN


RESPONDENT/S:
     1    STATE TAX OFFICER, SGST DEPARTMENT, MINI CIVIL STATION,
          KODUNGALLUR, THRISSUR DISTRICT, PIN - 680664

     2        STATE OF KERALA, DEPARTMENT OF TAXES, SECRETARIAT,
              THIRUVANANTHAPURAM REPRESENTED BY ITS SECRETARY TO
              GOVERNMENT, PIN - 695001

     3        DEPUTY COMMISSIONER (ARREAR RECOVERY) TAX PAYER
              SERVICES, SGST DEPARTMENT, POOTHOLE, THRISSUR, PIN - 680004


OTHER PRESENT:
          RESHMITA RAMACHANDRAN-GP


         THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
18.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No. 29096/2023
                                    -2-




                         JUDGMENT

The present writ petition has been filed seeking to quash

the show cause notice at Ext.P3 and Ext.P5 order completed by

the 1st respondent.

2. The petitioner is a registered dealer under the SGST

and CGST Acts. The petitioner filed a statement of sales in

GSTR-1, monthly returns in GSTR-3B, and annual returns in

GSTR-9, along with the Reconciliation statement in GSTR-9C

with audited financial statements for the year 2017-18. It

appears that there was a mismatch between the GSTR-1 and

GSTR-3B. The petitioner was issued notice, and a personal

hearing date was fixed on 07.03.2022.

2.1 However, on the said date, the 1st respondent was

on leave, and no notice for further hearing was fixed. Without

providing an opportunity for a hearing, the impugned order at W.P.(C) No. 29096/2023

Ext.P5 has been passed in pursuance of the Ext.P3 notice

issued.

3. On the last date of listing of the writ petition, i.e.,

on 05.09.2023, learned Government Pleader was directed to

have instructions on whether the petitioner was afforded an

opportunity of hearing before passing the impugned order in

Ext.P5.

3.1 On instructions, Ms Rasmitha Ramachandran

learned Government Pleader submits that no opportunity for

a hearing was given to the petitioner as required under Section

73 of the GST Act.

4. Considering the aforesaid fact and admitted

position, the present writ petition is allowed. The impugned

order in Ext.P5 and the notice in Ext.P3 are hereby set aside.

The petitioner is directed to appear before the 1 st respondent

on 29.09.2023 at 11.00 a.m. with all the records in his W.P.(C) No. 29096/2023

possession for finalising the fresh assessment order in

accordance with the law.

Sd/-

DINESH KUMAR SINGH JUDGE

jjj W.P.(C) No. 29096/2023

APPENDIX OF WP(C) 29096/2023 PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF ANNUAL RETURN IN FORM GSTR - 9 DATED 08.01.2021 SUBMITTED BY THE PETITIONER FOR 2017-18.

Exhibit P2 TRUE COPY OF RECONCILIATION STATEMENT IN FORM GSTR - 9C DATED 28.01.2021 SUBMITTED BY THE PETITIONER FOR 2017-18

Exhibit P3 TRUE COPY OF SHOW CAUSE NOTICE IN FORM GST DRC-01 DATED 23.02.2022 ISSUED BY 1ST RESPONDENT FOR 2017-18

Exhibit P4 TRUE COPY OF COMMUNICATION SUBMITTED BY THE PETITIONER BEFORE 1ST RESPONDENT IN FORM GST DRC-06 DATED 08.03.2022, SEEKING PERSONAL HEARING, AGAINST EXT P3

Exhibit P5 TRUE COPY OF ORDER NO.32AFVPA0100R1ZL/2017-18 DATED 29.07.2022 UPLOADED BY 1ST RESPONDENT IN GSTIN PORTAL, WITHOUT CONSIDERING EXT P1 AND P2

Exhibit P6 TRUE COPY OF NOTICE DATED 02.08.2023 ISSUED BY 3RD RESPONDENT, FOR REVENUE RECOVERY PURSUANT TO EXT P5 DEMAND ALONG WITH ENGLISH TRANSLATED COPY

Exhibit P7 TRUE COPY OF DECISION OF THIS HON'BLE COURT IN C U MATHAI VS. COMMERCIAL TAX OFFICER, REPORTED IN (2012) 51 VST 243 (KER.)