ORDER

PER THE HON’BLE THE CHIEF JUSTICE UJJAL BHUYAN

Heard Mr. Prahlad Gadipelli, learned counsel for the petitioner and Mr. L.Venkateswar Rao, learned counsel for the respondents.

2. By filing this petition under Article 226 of the Constitution of India petitioner has assailed legality and validity of the order dated 05.05.2022 passed by the Assistant Commissioner (ST), Maredpally Circle, Hyderabad, whereby and whereunder excess claim of input tax credit (ITC) of Rs.41,10,622.00 under central goods and services tax (CGST) and equivalent amount under state goods and services tax (SGST) has been confirmed.

3. On 06.09.2022 this Court had passed the following order:

“Challenge made in W.P.No.33292 of 2022 is to the order dated 05.05.2022 passed by the Assistant Commissioner (ST), Maredpally Circle, Hyderabad, whereby and whereunder excess claim of ITC of Rs.41,10,622.00 under CGST and Rs.41,10,622.00 under SGST has been confirmed.

Challenge made in W.P.No.33334 of 2022 is to the order dated 05.05.2022 passed by the Assistant Commissioner (ST), Maredpally Circle, Hyderabad, whereby and whereunder excess claim of ITC of Rs.36,21,951.00 under CGST and Rs.36,21,951.00 under SGST has been confirmed.

The aforesaid orders show that show cause notice was first issued to the petitioner on 30.04.2021 and reminder was issued thereafter on 02.06.2021 and almost after a year the impugned orders came to be passed.

Learned counsel for the petitioner submits that no notice of personal hearing was issued to the petitioner.

On the other hand, Mr. L.Venkateswara Rao, learned counsel for the respondents have produced before us a panchanama dated 15.12.2020 and a letter dated 08.01.2021 issued from the office of the Directorate General of GST Intelligence, Visakhapatnam Zonal Unit, addressed to the Chief Commissioner of State Tax, Hyderabad, and submits that petitioner has not carried out any business activity for the last six years, but they are passing on GST credit by issuing GST invoices without supply of goods.

Be that as it may, we find that sub-section (4) of Section 75 of the Central Goods and Services Tax Act, 2017, deals with two contingencies. Firstly, an opportunity of personal hearing is granted when a request is made in writing by the person chargeable with tax or penalty. Secondly, an opportunity of hearing is granted where any adverse decision is contemplated against such person. Prima facie, when an adverse order is proposed or contemplated, the person concerned is required to be given an opportunity of hearing.

At this stage, Mr. L.Venkateswara Rao, learned counsel for the respondents prays for time to ascertain as to whether any notice was issued to the petitioner or not.

On his request, list on 26.09.2022.”

4. Thereafter in the hearing held on 26.09.2022 Mr. L.Venkateswar Rao, learned counsel for the respondents produced before us copy of the show cause notice dated 31.04.2021 followed by reminder dated 02.06.2021 issued to the petitioner. He further submitted that impugned order was earlier uploaded in the common portal.

5. In the hearing today, Mr. L.Venkateswar Rao, learned counsel for the respondents while reiterating his previous contention has submitted that the show cause notice as well as notice of personal hearing were uploaded in the common portal which is an accepted mode of service of notice under Section 169 of the Central Goods and Services Tax Act, 2017. However, learned counsel for the petitioner submits that on 19.01.2021 the GST registration of the petitioner was cancelled. Therefore, petitioner could not access the common portal.

6. On due consideration, we are of the view that it would only be in the interest of justice if the petitioner is granted an opportunity of hearing by the Assistant Commissioner before passing a fresh order in accordance with law.

7. In view of the above, we set aside the order dated 05.05.2022 and remand the matter back to the file of Assistant Commissioner (ST), Maredpally Circle, Hyderabad. The order dated 05.05.2022, though has been set aside, may be construed as the show cause notice by the petitioner on the basis of which it shall submit its reply within fifteen days from today. Thereafter, the Assistant Commissioner (ST), Maredpally Circle, Hyderabad, shall pass appropriate order after giving due opportunity of hearing to the petitioner, including personal hearing.

8. This disposes of the writ petition.

Miscellaneous applications pending, if any, shall stand closed. However, there shall be no order as to costs.