Tag: Personal Hearing

Assessee could not represent properly due to Hospitalization – Order Set Aside and remanded back

Citation:

Hemanta Kumar Sharma vs. Commissioner (Audit) GST and Central Excise

[2025] 170 taxmann.com 60 (Orissa)[20-12-2024]

High Court of Orissa

Facts of the Case:

  1. A Show Cause Notice dated 17th August 2023 and an Order dated 13th December 2023 was issued demanding Penalty.
  2. Assessee was hospitalized between 22nd April 2023 to 6th June 2023 and again from 15th October 2023 to 17th March 2024 and he was seriously ill during these days. He has sent his Accountant to appear for the Personal Hearing and that accountant could not represent well.
  3. Department submitted that the assessee was given the opportunity for Personal Hearing and further, the right to appeal was lost, as the due date has expired.
  4. It was held that the assessee needs to be given one last oppportunity to represent his case, since if he becomes ill and gets hospitalized again, he may not be able to put forth his contentions any more.
  5. Hence, the Order is set aside and it was ordered to provide one further opportunity to the assessee and to pass the order afresh .

Personal Hearing was not granted even after requesting for the same – Order Set Aside

Citation:

Tvl. Town & City Developers Vs. State Tax Officer (Intelligence)

W.P. Nos. 11579, 11591 & 11595 of 2024 – High Court of Madras

[2024] 163 taxmann.com 547 (Madras)

Issue Involved:

Order-in-Original exceeded jurisdiction by applying GST at 5% instead of 1% merely on the allegation of non-compliance with Notification No.3/2019 – Central Tax (Rate) dated 29.03.2019. Personal Hearing was not granted in spite of requesting for the same in the Reply to the Show Cause Notice.

Other Grounds of Appeal:

  1. Essential Ingredients for invoking Section 74 are not contained in the Show Cause Notice.
  2. Impugned Order does not make reference to the petitioner’s replies (This ground was not sustained)

Held:

Order Set aside subject to the petitioner making 5% of tax disputed within two weeks.

Provisions relating to Personal Hearing: Section 75 – General Provisions relating to Determination of Tax:

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.

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.

Adjudication Order passed without providing written notice of Personal Hearing and ignoring the reply of the assessee is set aside

Citation:

Cart2India Online Retail (P.) Ltd. Vs. Union of India

Writ Petition (L) No. 25179 of 2023

[2023] 157 taxmann.com 212 (Bombay)

Facts of the Case:

  1. Petitioner has submitted a reply in DRC-06 dated 17th June 2023 to the Show Cause Notice, where Option for Personal Hearing has been selected as “Yes”.
  2. They have received a phone call on 5th July 2023 requiring them to attend personal hearing on 7th July 2023. No written Notice was issued regarding the hearing. Though the petitioner has stated on call that he would appear, he could not appear on the said date.
  3. Without providing a final opportunity for personal hearing, order been issued in DRC-07 demanding Tax, along with Interest u/s. 50 and Penalty u/s. 73(9) of CGST Act and Section 20 of IGST Act by the State Tax Officer (STO).
  4. Petitioner stated that the order passed is against the principles of Natural Justice and therefore the same needs to be set aside and passed after providing an opportunity of Personal Hearing.
  5. Hon’ble High Court of Bombay has observed that:
    • Petitioner has sufficiently requested for grant of personal hearing.
    • Merely because they have not attended the hearing without valid reason, it should not be presumed that they are not interested in hearing.
    • No written notice was issued regarding the hearing and the Order also did not consider the submissions of the petitioner as given in their reply to the Show Cause Notice.
  6. It was held that:
    • The Impugned Order dated 26th July 2023 is quashed and Set Aside and remanded back to STO, to be decided after providing an opportunity of personal hearing.
    • Petitioner is directed to appear before STO on 8th December 2023 to undertake to appear for Personal Hearing on a fixed date.
    • If the petitioner does not appear for hearing after undertaking to do so, STO is free to proceed further and pass an appropriate Order.

Appellate Authority is bound to look into the merits even in the absence of Assessee during proceedings

Citation:

SK Construction and Co Vs. State of Bihar

[2023] 156 Taxmann.com 553 (Patna)

Decision:

It was held that Appellate Authority is obligated under Section 107 to look into the merits of the matter and examine the grounds mentored by the assessee, even if his presence is not recorded during the proceedings.