Uttarakhand High Court
M/S Sri Sai Vishwas Polymers vs Deputy Commissioner And Another on 5 June, 2025
2025:UHC:4551-DB
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
HON'BLE THE CHIEF JUSTICE SRI G. NARENDAR
AND
HON'BLE SRI JUSTICE ALOK MAHRA
05TH JUNE, 2025
WRIT PETITION (M/B) No. 316 OF 2025
M/s Sri Sai Vishwas Polymers.
...Petitioner
Versus
Deputy Commissioner and another.
...Respondents
Counsel for the petitioner. : Mr. Akash Verma and Mr. Deepak
Kumar Tamta, learned counsels.
Counsel for the respondents. : Ms. Puja Banga, learned Brief Holder
for the State of Uttarakhand.
JUDGMENT :
(per Sri G. Narendar, C.J.)
Heard the learned counsel for the petitioner, and
the learned Brief Holder for the State of Uttarakhand.
2. The short point, that is canvassed before this
Court is that the Assessing Officer has passed the order of
assessment in violation of the provisions of sub-section (4)
of Section 75 of the Central Goods and Services Tax Act,
2017 (for short "CGST Act"). Section 75 of the CGST Act
deals with the general provisions relating to determination
of tax, and the procedure that is required to be adopted by
the Assessing Authority, while completing the process of
assessment. One such pre-requisite is that the Assessing
Authority is required to afford an opportunity of personal
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hearing, where it is requested by the Assessee in writing, or
where any adverse decision is contemplated against such
person, meaning thereby that the Assessing Authority is
required to comply with the mandate of sub-section (4) of
Section 75 in either of the two circumstances, i.e. where a
request for personal hearing is made and specifically sought
for in writing, or where an adverse decision is contemplated
against such person.
3. In the instant case, the Assessing Officer has
drawn conclusions adverse to the interest of the petitioner,
and that being the undisputed fact, the Assessing Authority
was required to afford an opportunity of personal hearing,
even in the absence of a written request. It is needless to
say that, when the law requires a thing to be done in a
particular manner, the said act shall be performed in the
said manner alone, or not at all. Law in this regard is no
more res integra, and is well-settled by catena of
judgments of the Hon'ble Apex Court. A similar view was
taken by the Hon'ble Supreme Court in the case of
Independent Sugar Corporation Ltd. v. Girish Sriram
Juneja & Ors., Civil Appeal No. 6071 of 2023 dated
29.01.2025. Paragraph nos. 54 & 83 of the said judgment
reads as follows:
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"54. In the present interpretive exercise, one also needs
to be mindful of the legal principle which says that where
a statute requires one to do a certain thing in a certain
manner, it must be done in that particular manner or not
done at all. For this proposition, it would be relevant to
extract the following from the judgment in A. R. Antulay
v. Ramdas Sriniwas Nayak, (1984) 2 SCC 500:
"22........ It is unnecessary to refer to the long line of decisions
commencing from Taylor v. Taylor [(1876) 1 Ch D 426]; Nazir
Ahmad v. King-Emperor [AIR 1936 PC 253 (2) : 63 IA 372 :
(1936) 37 Cri LJ 897] and ending with Chettiam Veettil
Ammadv. Taluk Land Board [(1980) 1 SCC 499 : AIR 1979 SC
1573 : (1979) 3 SCR 839], laying down hitherto
uncontroverted legal principle that where a statute requires to
do a certain thing in a certain way, the thing must be done in
that way or not at all. Other methods of performance are
necessarily forbidden."
83. In Sharif-ud-Din v. Abdul Gani Lone, (1980) 1 SCC
403, the Supreme Court held as follows:
"9... In order to find out the true character of the legislation,
the court has to ascertain the object which the provision of law
in question has to subserve and its design and the context in
which it is enacted. If the object of a law is to be defeated by
non-compliance with it, it has to be regarded as mandatory...
Whenever a statute prescribes that a particular act is to be
done in a particular manner and also lays down that failure to
comply with the said requirement leads to a specific
consequence, it would be difficult to hold that the requirement
is not mandatory and the specified consequence should not
follow."
4. The scheme of the Act mandates that, in either of
the two circumstances, a personal hearing is required to be
given to the party, who either makes a written request, or
against whom the authorities contemplate an adverse
order. In the case on hand, the latter part is applicable,
and the Assessing Authority ought to have complied with
the mandate of sub-section (4) of Section 75 of the CGST
Act.
5. Per contra, the learned Brief Holder for the
Department would place reliance on an earlier order of this
Court, rendered in Writ Petition (M/B) No. 256/2025. The
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facts involved in the instant case, and the facts involved
therein are not on par. In the aforementioned decision,
relied upon by the learned Brief Holder, the Court has not
entered upon the merits and the binding effect of sub-
section (4) of Section 75, and has relegated the parties to
the alternate remedy that is available under law. In the
instant case, the petitioner has already approached the
Competent Authority, and availed of the alternate remedy,
and the Appellate Authority has been pleased to reject the
same, on the ground of limitation alone.
6. The Appellate Authority failed to appreciate that
the order impugned, results in civil consequences, and any
proceedings, which results in civil consequences to the
petitioner, are required to be passed after affording an
opportunity of hearing. In the case of CGST Act, the Act
itself, and in particular sub-section (4) of Section 75,
mandates that an opportunity of personal hearing ought to
be given to the parties concerned, more so when the
authorities contemplate an order adverse to the interest of
the assessee.
7. In that view of the matter, we are of the
considered opinion that the Appellate Authority has failed to
appreciate the settled position in law that no order,
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affecting civil rights of a citizen, can be passed without
affording an opportunity of hearing, and also failed to
appreciate the fact that the mandate, and the scheme of
the Act itself, has been violated by the concerned
authorities.
8. In that view of the matter, the Writ Petition is
allowed. The order impugned is set-aside. The matter is
remitted back to the Appellate Authority for re-
consideration in accordance with law.
As a sequel thereto, the miscellaneous petitions,
if any pending, shall stand closed.
_______________
G. NARENDAR, C.J.
_____________
ALOK MAHRA, J.
Dt: 05th June, 2025
Rahul
RAHUL UTTARAKHAND,
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PRAJAPATI
ab, postalCode=263001,
st=UTTARAKHAND,
serialNumber=303B55CC3063D34AC45BF
8A192FCAD15C390A1AAD7B39857D2540
AE4C28A4898, cn=RAHUL PRAJAPATI
Date: 2025.06.09 10:50:34 +05'30'
