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November 7, 2023

Assessee’s legal right is violated when a brief window of time is given for responding

Assessee’s legal right is violated when a brief window of time is given for responding

Fact and issue of the case

Heard Mr.Kamal Sawhney and Mr.Deepak Thakur learned counsel representing Mr.S.M.Vivek Anandh, learned counsel appearing for the petitioner and Mr.V.Prashanth Kiran, learned Government Advocate appearing on behalf of the respondents. By consent of the parties, the main Writ Petition is taken up for final disposal at the stage of admission itself.

In this Writ Petition, the petitioner has challenged both the impugned order of assessment for the year 2019-20 dated 29.06.2023, whereby, the second respondent has raised a demand of Rs.103,68,32.830 against the petitioner and the show cause notice dated 21.04.2023 which formed the basis for issuance of aforesaid impugned order of assessment and sought for quashmment of both orders dated 21.04.2023 and 29.06.2023 and consequently, for a mandamus, directing the Appellate Authority to entertain the petitioner’s Appeal without insistence of pre-deposit of 10% of the disputed tax liability as per Section 107 of the Tamil Nadu Goods and Services Tax Act, 2017.

The case of the petitioner in gist and kernel is as follows:-

i) The petitioner is an assessee on the files of the respondent-Department under the provisions of Tamil Nadu General Sales Tax Act, 2017 (hereinafter, referred to as ‘TNGST Act’).

ii) Initially, the second respondent issued a notice dated 22.12.2022, pointing out certain discrepancies, to which, the petitioner submitted a reply dated 09.01.2023. The second respondent without considering the said reply, issued the impugned show cause notice dated 21.04.2023 (1st Hearing). The petitioner vide letter dated 05.05.2023 sought time to file reply to the show cause notice dated 21.04.2023 and filed reply on 30.05.2023. Thereafter, the second respondent issued a notice dated 16.06.2023 (II Hearing) fixing the date of personal hearing on 20.06.2023. Since the said notice dated 16.06.2023 does not speak of anything about the reply filed by the petitioner, the petitioner assumed that the reply filed by the petitioner has not been considered by the second respondent and hence, the petitioner reiterated the said reply on 16.06.2023.

iii) Thereafter, the second respondent issued another personal hearing notice on 21.06.2023 (III Hearing) at 9.52 p.m. and fixed the hearing on 23.06.2023 at 11.00 p.m. and for production of documents relied on by the petitioner in their reply. The petitioner requested the second respondent to provide time for furnishing the documents. However, the second respondent rejected the petitioner’s request on the ground that three hearing opportunities have been granted and confirmed the proposals contained in the show cause notice dated 21.04.2023 and passed an order of assessment on 29.06.2023.

iv) Challenging the order of assessment dated 29.06.2023 as well as the show cause notice dated 21.04.2023, the petitioner has filed the present Writ Petition.

Observation of the court

In the light of the above narrated facts, this Court is of the view that the impugned orders are wholly untenable not only on the ground of total violation of principles of natural justice but also on other grounds, including failure to pass a speaking order as rightly contended by the learned counsel for the petitioner. Though the learned Government Advocate has raised strong objection for granting any order, be it interim or final order, which would succour the petitioner, however, considering the fact that he has not taken a definite stand as regards the contention advanced by the petitioner, which would per se show that he is partially admitting that there are certain discrepancies in the impugned order, and bearing in mind that the interests of both the assessee and the Revenue has to be safeguarded, in the light of higher demand made by the second respondent so as to avoid unnecessary delay to process the further adjudication, this Court is inclined to set aside the impugned order of assessment with condition to remand the matter back to the second respondent for re-adjudication.

Accordingly, the Writ Petition is allowed, impugned order, viz., the assessment order dated 29.06.2023 is set aside and the matter is remanded to the second respondent for fresh consideration. The second respondent is directed to provide one more opportunity of personal hearing to the petitioner, which shall be fixed on 16.11.2023, on which date, the petitioner shall file their reply together with all documents in support of their claim, which shall be inclusive of the documents as sought for by the respondent-Department in the notice of hearing dated 21.06.2023, and thereafter, the second respondent shall peruse the documents and after conducting a full-fledged hearing, the second respondent is directed to pass fresh assessment orders, which shall be a speaking order touching upon all issues raised by the petitioner on or before 12.12.2023. No costs. Consequently, connected Writ Miscellaneous Petition is closed. List the matter on 14.12.2023 for reporting compliance.

Read the full order from here


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