Korrapathi Janardhana Naidu vs. He State Of Andhra Pradesh And Other
(Andhra Pradesh High Court, Andhra Pradesh)
Heard Sri V.R. Machavaram, learned counsel for the petitioner and Sri Y.N. Vivekananda, learned Government Pleader for Commercial Tax for the respondents, apart from perusing the material available on record.
2. Challenge in the present Writ Petition is to the order of assessment passed by the Assistant Commissioner (State Tax), Circle-II, Nellore-2nd respondent herein, bearing Order No.ZH3709200D88169, dated 21.09.2020, determining the tax liability, penalty and interest as ₹ 28,31,806/-.
3. The short question that arises for consideration of this Court in the present Writ Petition is, whether the impugned order of assessment is liable to be set aside on the ground that no notice of personal hearing was issued before resorting to the impugned action ?
4. According to the learned counsel for the petitioner, non-adherence to the mandatory provisions of sub-section (4) of Section 75 of the Central Goods and Services Tax Act, 2017 (for short, ‘the CGST Act, 2017’) is fatal to the case of the respondents.
5. On the other hand, it is strenuously contended by the learned Government Pleader that in view of availability of alternative remedy of appeal under Section 107 of the CGST Act, 2017, the present Writ Petition is liable to be rejected.
6. According to the petitioner, he is a registered civil contractor, undertaking government works in Water Resources Department of the Government of Andhra Pradesh. A perusal of the impugned order of assessment shows that preceded by a notice dated 23.01.2020 and submission of reply dated 23.7.2020 by the assessee, 2nd respondent-Assessing Authority passed the impugned order of assessment.
7. In order to adjudicate the issue in the present Writ Petition, it may be appropriate to refer to Section 75 of the CGST Act, 2017, which deals with the general provisions relating to determination of tax. According to sub-section (4) of Section 75 of the Act, an opportunity of hearing should 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. In the instant case, though the petitioner herein submitted his reply to the notice issued by 2nd respondent prior to passing the impugned order, the Assessing Authority, while referring to the objections raised therein, simply stated that they were not considered, and eventually, determined the liability as proposed in the show cause notice. In the considered opinion of this Court, 2nd respondent herein, before doing so, ought to have afforded an opportunity of hearing to the assessee, as mandated under sub-section (4) of Section 75 of the CGST Act, 2017. In the case on hand, 2nd respondent adhered to the said provision of law in breach. The said action is also a patent violation of principles of natural justice, as such, the contention of the learned Government Pleader as regards the availability of alternative remedy of appeal under Section 107 of the CGST Act, 2017, deserves to be rejected and is, accordingly, rejected. On the sole ground of failure to adhere to the provisions of sub-section (4) of Section 75 of the CGST Act, 2017, this Court is inclined to set aside the impugned order and to remand the matter to the Assessing Authority for passing appropriate orders afresh.
8. For the aforesaid reasons, the Writ Petition is allowed, setting aside the order of assessment passed by the Assistant Commissioner (State Tax), Circle-II, Nellore-2nd respondent herein, bearing Order No.ZH3709200D88169, dated 21.09.2020, and remanding the matter to 2nd respondent for consideration of the issue afresh after affording opportunity of hearing to the petitioner. There shall be no order as to costs of the Writ Petition. Miscellaneous Petitions pending, if any, in the Writ Petition shall stand closed.
