Tag: Ex Parte Order

Ex-Parte Order Passed – Assessee was allowed to file reply to SCN thereafter, on Medical Grounds

Citation:

Pragati Construction Vs. Commissioner of C.T. & G.S.T.,

W.P.(C) No. 41802 of 2023 December 21, 2023, Hon’ble High court of Orissa

[2023] 157 taxmann.com 681 (Orissa)

Facts:

  1. A Show Cause Notice dated 27-09-2023 was issued for the Tax Period 1st July 2017 to 31st March 2018.
  2. Assessee could neither reply to the Show Cause Notice (SCN) nor appear before the authority, due to his Medical Condition of “Reeling of Head and Imbalance of Gait” and was undergoing treatment.
  3. An Order dated 23-11-2023 was passed Ex Parte (Without appearance of the assessee) by the Deputy Commissioner of State Tax, CT & GST under Section 73 of OGST Act, 2017.
  4. Hence, the assessee has filed this petition, enclosing the medical certificate.

Decision:

Hon’ble High Court of Orissa has held that:

  1. The Impugned Order is set aside and the petitioner ought to be given one more chance to first reply to the SCN on or before 02-01-2024 and appear before the adjudicating authority.
  2. The Authority shall take up the matter before 08-01-2024 for a fresh Assessment Order to be passed within 2 months.
  3. If the petitioner is aggrieved by the order, he may seek appropriate remedies as per Law.

Where the right of Personal Hearing is not waived, Ex Parte order cannot be passed

Citation:

Kuehne Nagel (P.) Ltd. Vs. State of Maharashtra – Writ Petition No. 15210 of 2023

[2023] 157 taxmann.com 366 (Bombay)

Hon’ble High Court of Bombay

Relevant Facts:

  1. The assessee has in their reply to SCN specifically requested for Personal Hearing, but while submitting the reply in the GST Portal, they have checked the box “No” with regard to selection of Option for Personal Hearing.
  2. Hence, the department has not granted Personal Hearing.

Provisions governing grant of Opportunity of Personal Hearing:

Section 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.

Section 75(5):

The proper officer shall, if sufficient cause is shown by the person chargeable with tax, grant time to the said person and adjourn the hearing for reasons to be recorded in writing:

Provided that no such adjournment shall be granted for more than three times to a person during the proceedings.

Findings:

  1. This is an Inadvertent error on the part of the petitioner in ticking the Box “No”, because in the written reply to the Show Cause Notice, they have expressly requested for Personal Hearing.
  2. The department was under an obligation to grant Personal Hearing.
  3. The adjudicating officer (AO) was required to take into consideration the specific request. A Mechanical approach was adopted by AO in only noticing the box where the petitioner has inadvertently put a tick mark on “No”.
  4. This was not a case where the petitioner has expressly waived its right of Personal Hearing.
  5. Section 75(4) is applicable and the impugned order is in breach of Principles of Natural Justice and is contrary to Section 75(4).

Order:

  1. The Impugned Order is Quashed and Set Aside.
  2. The Petitioner shall be granted an Opportunity of Personal Hearing and after considering the contentions of the petitioner, appropriate Order shall be passed within 4 Weeks.