Patna High Court
Tata Projects Limited vs Union Of Inida on 29 January, 2025
Author: P. B. Bajanthri
Bench: P. B. Bajanthri, Sunil Dutta Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.7830 of 2024
======================================================
Tata Projects Limited a company registered under Companies Act, 1956
having its office at Ground Floor, House No. 20, State Bank of India,
Kankarbagh Road, District Patna 800020, Bihar through its Authorised
Signatory Shri Prem Prakash Sagar (Male, aged about 47 Years) son of Late
Shri Hodil Singh Resident of 5/406, Gautam Nagar, ITI Road, Koil, Aligarh,
Uttar Pradesh-202001.
... ... Petitioner/s
Versus
1. Union of India through the Secretary, Finance, North Block, New Delhi-
110001.
2. Central Board of Indirect Taxes and Customs, through its Secretary having
its office at 47 B, CBIC, Department of Revenue, North Block, New Delhi
110001.
3. Commissioner of CGST and Central Excise having its office at Central
Revenue Building, (Annexe), Bir Chand Patel Path, Patna.
4. Joint Commissioner, Central GST and Central Excise, Patna 1 having its
office at Central Revenue Building, (Annexe), Bir Chand Patel Path, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. D. V. Pathy, Sr. Advocate.
: Mr. Sadashiv Tiwary, Advocate.
: Mr. Hiresh Karan, Advocate.
: Ms. Prachi Pallavi, Advocate.
: Ms. Shivani Dewalla, Advocate.
For the Respondent/s : Mr. K. N. Singh, ASGI.
: Mr. Anshuman Singh, Sr. SC, CGST & CX
: Mr. Shivaditya Dhari Singh, Advocate.
======================================================
CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
and
HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)
Date : 29-01-2025
1. In the instant petition, petitioner has prayed for
the following relief(s):-
"i) The order dated 19.03.2024 and also the
summary of order (as contained in Annexure - P 4
series) passed by the respondent no.4 under
Patna High Court CWJC No.7830 of 2024 dt.29-01-2025
2/7
Section 73(9) of the Act charging tax, interest and
imposing penalty for the Financial Year 2018 - 19
without consideration of reversal of input tax credit
of Rs.6.25 crores though admitting the same to be
declared in the column of "other reversal head"
(Table - 7 - H) and also without consideration of
the Circular No.183/15/2022 - GST dated
27.12.2022
allowing input tax credit on the basis of
the certificate of the supplier and of the chartered
accountant beyond the terms of the show cause
notice after expiry of the time limit set out in
Section 73 (10) of the Act be set-aside and
quashed.
ii) The Notification No. 09/2023 dated
31.03.2023 (as contained in Annexure - P6 issued
by the respondent no.2 extending the time limit
specified under sub Section (10) of Section 73 of
the Central Goods and Services Tax Act, 2017
(hereinafter called the Act) for issuance of order
under sub Section (9) of Section 73 of the Act for
recovery of tax not paid or short paid or of input
tax credit wrongly availed or utilized up to
31.03.2024 for the Financial Year 2018 - 19 being
beyond the scope of powers under Section 168A of
the Act being wholly without jurisdiction be
quashed.
iii) The Notification No. 56/2023 dated
28.12.2023 (as contained in Annexure - P7) issued
by the respondent no.2 extending the time limit
specified under sub Section (10) of Section 73 of
the Act for issuance of order under sub Section (9)
of Section 73 of the Act for recovery of tax not paid
or short paid or of input tax credit wrongly availed
or utilized up to 30.04.2024 for the Financial Year
2018 - 19 being beyond the scope of powers under
Section 168A of the Act being wholly without
jurisdiction be quashed.
iv) For granting any other relief (s) to which
the petitioner is otherwise found entitled to."
Patna High Court CWJC No.7830 of 2024 dt.29-01-2025
2. The petitioner has a statutory remedy of appeal
before the Appellate Authority and without exhausting such
remedy he has rushed to this Court. On this score, learned
counsel for the petitioner pointed out Section 75(4) of Central
Goods and Services Tax Act, 2017. It is necessary to reproduce
Section 75(4) of Central Goods and Services Tax Act, 2017
which is as under:-
"75(4) An opportunity of hearing shall be granted
where a request is received in writing from the
person chargeable with tax or penalty, or where
any adverse decision is contemplated against such
person."
3. For the purpose of compliance to sub-section (4)
of Section 75 of Central Goods and Services Tax Act, 2017 the
concerned authority was required to hear the petitioner having
regard to the fact that adverse order has been passed against the
petitioner in the impugned order dated 19.03.2024. Perusal of
the impugned order, there is no iota of material evidence to the
extent that petitioner was provided opportunity of show cause
notice along with his reply or explanation relating to proposed
order dated 19.03.2024.
4. Per contra, learned counsel for the respondents
resisted the aforementioned contention and submitted that show
cause notice has been issued insofar as amount mentioned in the
Patna High Court CWJC No.7830 of 2024 dt.29-01-2025
impugned order at paragraph no. 5.0. Learned counsel for the
respondents submitted that the concerned file must contain
issuance of show cause notice. It was also submitted that while
passing impugned order personal hearing was given to the
petitioner which has been recorded at paragraph no. 3.0.
Therefore, the petitioner's contention that he has not been heard
is incorrect.
5. Heard the learned counsels for the respective
parties. Core issue involved in the present lis is whether
petitioner is to be relegated to the Appellate Authority or not.
Present writ petition is filed invoking extraordinary jurisdiction
under Article 226 of the Constitution of India. Even litigant has
a statutory remedy of appeal before the Appellate Authority, in
that event in the ordinary course writ is not maintainable with
certain exceptions, one of the exceptions is violation of
principles of natural justice. Insofar as providing principle of
natural justice is concerned, it is available in the statute namely
sub-section (4) of Section 75 of Central Goods and Services Tax
Act, 2017. Reading of the aforementioned statutory provision, it
is crystal clear that before passing any adverse order an
opportunity shall be provided to such person against whom
adverse orders are likely to be passed.
Patna High Court CWJC No.7830 of 2024 dt.29-01-2025
6. Perusal of impugned order dated 19.03.2024, it
is evident that petitioner has not been heard before passing
adverse order insofar as paragraph no. 5.0 is concerned. Even
assuming paragraph no. 3.0 of the impugned order is taken into
consideration, perusal of paragraph no. 3.0 it is not evident as to
whether petitioner has been issued notice particularly in respect
of paragraph no. 5.0 of the impugned order. This is evident from
paragraph no. 3.0. It is necessary to reproduce paragraph no.
3.0 of the impugned order dated 19.03.2024 which reads as
under:-
"3.0 Personal Hearing:
3.1 On the pursuance of letters for Personal
Hearing issued on 16.01.2024, 30.01.2024 and
08.02.2024, the assessee have appeared on
15.02.2024 for personal hearing and submitted
their written defense reply dated 07.02.2024. They
have already submitted a defense reply dated
24.01.2024. Further, they have again submitted
their additional defense reply on 21.02.2024. The
all three written reply submitted by them are
mentioned in above Para 2.1 to 2.7."
7. Reading of the aforementioned paragraph, it is
evident that it is only in respect of personal hearing. The
respondents have not pointed out any proposal to pass adverse
order on 16.01.2024, 30.01.2024 and 08.02.2024 and it is only
for the purpose of appearance of the assessee-petitioner.
8. Learned counsel for the respondents submitted
Patna High Court CWJC No.7830 of 2024 dt.29-01-2025
that before passing impugned order show cause notice has been
issued insofar as proposed adverse order passed. Assuming that
show cause notice was issued in respect of adverse order,
insofar as paragraph no. 5.0 of the impugned order, in that event
there is no reference in the impugned order insofar as issuance
of show cause notice and so also seeking petitioner's
explanation. Assuming that show cause notice was issued in that
event there should have been a statement by the author of the
impugned order dated 19.03.2024 to the extent that show cause
notice was issued on a particular date, however, petitioner has
failed to furnish his reply. In the absence of such material one
has to draw inference that impugned order dated 19.03.2024 is
in violation of sub-section (4) of Section 75 of Central Goods
and Services Tax Act, 2017.
9. In the light of these facts and circumstances, the
petitioner has made out a case so as to interfere with the
impugned order dated 19.03.2024 passed by respondent no.4
and the same is set-aside.
10. Matter is remanded to the concerned authority
to proceed in accordance with law, such exercise shall be
completed within a period of six months from the date of receipt
of this order, after adherence to the respective provisions.
Patna High Court CWJC No.7830 of 2024 dt.29-01-2025
11. Accordingly, CWJC No.7830 of 2024 stands
allowed in part.
(P. B. Bajanthri, J)
(Sunil Dutta Mishra, J)
harish/-ritik/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 07.02.2025
Transmission Date NA
