Kerala High Court
K.A.V. Shaik Rowther vs Assistant Commissioner on 28 January, 2025
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
2025:KER:6534
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
TUESDAY, THE 28TH DAY OF JANUARY 2025 / 8TH MAGHA, 1946
WP(C) NO. 3340 OF 2025
PETITIONER:
K.A.V. SHAIK ROWTHER
42/815, MARKET ROAD
PALAKKAD, PIN - 678014
(REPRESENTED BY SRI. A.M.SHAIK AFSAL, PARTNER)
BY ADVS.
K.N.SREEKUMARAN
P.J.ANILKUMAR (A-1768)
S.JAFFERALI
RESPONDENTS:
1 ASSISTANT COMMISSIONER
CENTRAL TAX AND CENTRAL EXCISE,
PALAKKAD DIVISION, CENTRAL REVENUE BUILDING,
METTUPALAYAM STREET, PALAKKAD, PIN - 678001
2 SUPERINTENDENT
CENTRAL TAX AND CENTRAL EXCISE,
PALAKKAD DIVISION, CENTRAL REVENUE BUILDING,
METTUPALAYAM STREET, PALAKKAD, PIN - 678001
3 PRINCIPAL COMMISSIONER
CENTRAL TAX AND CENTRAL EXCISE CENTRAL REVENUE
BUILDING MANNAMCHIRA ROAD,
KOZHIKODE, PIN - 673001
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W.P.(C). No.3340 of 2025
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4 PRINCIPAL CHIEF COMMISSIONER
CENTRAL TAX AND CENTRAL EXCISE CENTRAL REVENUE
BUILDING, I S PRESS ROAD, KACHERIPADI,
ERNAKULAM, PIN - 682018
BY ADV. V.GIRISHKUMAR,
STANDING COUNSEL
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 28.01.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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W.P.(C). No.3340 of 2025
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BECHU KURIAN THOMAS, J.
---------------------------------------
W.P.(C). No.3340 of 2025
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Dated this 28th day of January, 2025
JUDGMENT
Petitioner is a wholesale dealer in building materials and is
registered under the Goods and Services Tax Act. During scrutiny of
the returns for the financial year 2020-21, since certain anomalies were
noticed, a show cause notice was issued under Section 73 of the Central
Goods & Services Tax Act/State Goods and Services Tax Act, 2017 on
20.11.2024, directing the petitioner to file a reply by 27.12.2024 and to
appear for a hearing on 06.01.2025. After receipt of the show cause
notice, a reply notice was filed on the last date fixed for submitting the
reply, i.e., 27.12.2024. Subsequently, when the matter was taken up
for consideration on 06.01.2025 - the date fixed for hearing, there was
no appearance on behalf of the petitioner and an order was passed on
16.01.2025, determining the amount of tax, penalty and interest due.
Petitioner assails the aforesaid order under Article 226 of the
Constitution of India contending that there was a violation of the
principles of natural justice.
2. I have heard Sri. K.N. Sreekumaran, the learned counsel for
the petitioner as well as Sri.l V. Girishkumar, the learned Standing
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Counsel for the respondents.
3. A perusal of Exhibit-P3 summary of show cause notice
dated 27.11.2024 reveals that petitioner was granted time to file a
reply by 27.12.2024 and the date of hearing was fixed at 12.10 p.m. on
06.01.2025. The venue was also specifically mentioned therein. In the
reply notice, petitioner had, requested for dropping the proposal and
also to grant 15 days time to file clarifications to one of the issues
noticed apart from an opportunity of hearing. However, on the date
fixed for hearing, i.e., 06.01.2025, none appeared, and the proper
officer proceeded to issue Exhibit-P6 impugned order. Though petitioner
has an appellate remedy under Section 107 of the Central Goods &
Services Tax Act, he has chosen to file this writ petition alleging
violation of the principles of natural justice.
4. A perusal of the records, Exhibit-P3, Exhibit-P4 and
Exhibit-P6 indicates that, though petitioner was granted an opportunity
of hearing on 06.01.2025, he failed to appear. Thereafter he has now
turned around and stated that there is a violation of principles of
natural justice in not granting an opportunity of hearing. Failure to
avail an opportunity of hearing is different from not granting such an
opportunity. When the latter amounts to violation of the principles of
natural justice, the former is a default on the part of the person who is
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proceeded against, which cannot be regarded as failure to grant an
opportunity of hearing. The contention of the petitioner that he had
sought 15 days time for hearing is not entirely correct, as the objection
filed by the petitioner reveals that he sought 15 days time to produce
one record. The opportunity of being heard sought for by the petitioner
was already granted to him with a date fixed as 06.01.2025. In such
circumstances, the contention that there was violation of principles of
natural justice while passing Exhibit-P6 order is not legally tenable.
5. The contention raised against Exhibit-P6 falls in the realm
of disputed facts for which the remedy is to pursue the statutory
remedies, in accordance with law.
Hence, reserving the liberty of the petitioner to pursue the
statutory remedies available under law against Exhibit-P6, this writ
petition is dismissed.
Sd/-
BECHU KURIAN THOMAS
JUDGE
Jka/28.01.25.
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APPENDIX OF WP(C) 3340/2025
PETITIONER'S EXHIBITS
Exhibit-P 1 TRUE COPY OF THE ANNUAL RETURN IN FORM
NO.9 FILED ON 28.12.2021 VIDE
ARN:AA320321749374G ALONG WITH SUMMARY
OF GSTR3B & GSTR-1
Exhibit-P 2 TRUE COPY OF THE SUMMARY OF SHOW CAUSE
NOTICE U/S.73 OF THE CGST/SGST ACT IN
FORM GST DRC-01 DATED 21.11.2024 WITH
REFERENCE NUMBER ZD321124017515X ALONG
WITH A ALONG WITH A SHOW CAUSE NOTICE
BEARING NUMBER 46/2024/GST DATED
20.11.2024
Exhibit-P 3 TRUE COPY OF THE NOTICE DATED 27.11.2024
WITH REFERENCE NUMBER : ZD3211240235422
PERTAINING TO THE FINANCIAL YEAR 2020-21
Exhibit-P 4 TRUE COPY OF THE REPLY DATED 24.12.2024
WITH REFERENCE NO: ZD3212240161732 FILED
BEFORE THE 1ST RESPONDENT
Exhibit-P5 TRUE COPY OF THE REPLY IN DRC-06 DATED
27.12.2024 WITH REFERENCE
NO:ZD321224017366S FILED BEFORE THE 1ST
RESPONDENT
Exhibit-P6 TRUE COPY OF THE E ORDER REF. NO.
ZD3201250115425 DATED 17.01.2025 ALONG
WITH THE ORDER IN ORIGINAL BEARING FILE
NO.GEXCOM/SCN/GST/6152/2024-CGST-DIV-PKD
DATED 16.01.2025
