4551-DB I N TH E H I GH COURT OF UTTA RA K H v. …Pet it ioner Deput y Com m issioner and anot her

Kum ar Tam t a, learned counsels. Counsel for t he r espondent s. : Ms. Puj a Banga, learned Brief Holder for t he St at e of Ut t arak hand. JUD GM EN T : ( p e r Sr i G. N a r e n d a r , C.J.) Heard t he learned counsel for t he pet it ioner, and t he learned Brief Holder for t he St at e of Ut t arakhand.

2. The short point , t hat is canvassed before t his Court is t hat t he Assessing Officer has passed t he order of assessm ent in violat ion of t he provisions of sub- sect ion ( 4) of Sect ion 75 of t he Cent ral Goods and Services Tax Act , 2017 ( for short “ CGST Act ” ) . Sect ion 75 of t he CGST Act deals wit h t he general provisions relat ing t o det erm inat ion of t ax, and t he procedure t hat is required t o be adopt ed by t he Assessing Aut horit y, while com plet ing t he process of assessm ent . One such pre- requisit e is t hat t he Assessing Aut horit y is required t o afford an opport unit y of personal 1 hearing, where it is request ed by t he Assessee in writ ing, or where any adverse decision is cont em plat ed against such person, m eaning t hereby t hat t he Assessing Aut horit y is required t o com ply wit h t he m andat e of sub- sect ion ( 4) of Sect ion 75 in eit her of t he t wo circum st ances, i.e. where a request for personal hearing is m ade and specifically sought for in writ ing, or where an adverse decision is cont em plat ed against such person.

3. I n t he inst ant case, t he Assessing Officer has drawn conclusions adverse t o t he int erest of t he pet it ioner, and t hat being t he undisput ed fact , t he Assessing Aut horit y was required t o afford an opport unit y of personal hearing, even in t he absence of a writ t en request . I t is needless t o say t hat , when t he law requires a t hing t o be done in a part icular m anner, t he said act shall be perform ed in t he said m anner alone, or not at all. Law in t his regard is no m ore int egra, and is well- set t led by cat ena of j udgm ent s of t he Hon’ble Apex Court . A sim ilar view was t aken by t he Hon’ble Suprem e Court t he case of I n d e p e n d e n t Su g a r Co r p o r a t i o n Lt d . v . Gi r i sh Sr i r a m Ju n e j a & Or s., Ci v i l A p p e a l N o . 6 0 7 1 o f 2 0 2 3 d a t e d 2 9 .0 1 .2 0 2 5 . Paragraph nos. 54 & 83 of t he said j udgm ent reads as follows: 2 “ 54. I n t he present int erpret ive exercise, one also needs t o be m indful of t he legal principle which says t hat where a st at ut e requires one t o do a cert ain t hing in a cert ain m anner, it m ust be done in t hat part icular m anner or not done at all. For t his proposit ion, it would be relevant t o ext ract t he following from t he j udgm ent in A. R. Ant ulay v. Ram das Sriniwas Nayak, ( 1984) 2 SCC 500: “ 22…….. I t is unnecessary t o r efer t o t he long line of decisions com m encing fr om Taylor v. Taylor [ ( 1876) 1 Ch D 426] ; Nazir Ahm ad v. King- Em peror [ AI R 1936 PC 253 ( 2) : 63 I A 372 : ( 1936) 37 Cri LJ 897] and ending wit h Chet t iam Veet t il Am m adv. Taluk Land Board [ ( 1980) 1 SCC 499 : AI R 1979 SC 1573 laying down hit hert o uncont rov ert ed legal principle t hat wher e a st at ut e r equires t o do a cert ain t hing in a cert ain way, t he t hing m ust be done in t hat way or not at all. Ot her m et hods of per form ance ar e necessarily forbidden.” ( 1979) 3 SCR 839] , : I n Sharif- ud- Din v . Abdul Gani Lone, ( 1980) 1 SCC

83. 403, t he Suprem e Court held as follows: “ 9… I n order t o find out t he t rue charact er of t he legislat ion, t he court has t o ascert ain t he obj ect which t he provision of law in quest ion has t o subserv e and it s design and t he cont ext in which it is enact ed. I f t he obj ect of a law is t o be defeat ed by non- com pliance wit h it , it has t o be r egarded as m andat ory… Whenever a st at ut e pr escribes t hat a part icular act is t o be done in a part icular m anner and also lays dow n t hat failure t o com ply wit h t o a specific consequence, it w ould be difficult t o hold t hat t he r equirem ent is not m andat or y and t he specified consequence should not follow .” requir em ent t he said

4. The schem e of t he Act m andat es t hat , in eit her of t he t wo circum st ances, a personal hearing is required t o be given t o t he part y, who eit her m akes a writ t en request , or against whom t he aut horit ies cont em plat e an adverse order. I n t he case on hand, t he lat t er part is applicable, and t he Assessing Aut horit y ought t o have com plied wit h t he m andat e of sub- sect ion ( 4) of Sect ion 75 of t he CGST Act .

5. Per cont ra, t he learned Brief Holder t he Depart m ent would place reliance on an earlier order of t his Court , rendered in Writ Pet it ion ( M/ B) No. 256/ 2025. The 3 fact s involved in t he inst ant case, and t he fact s involved t herein are not on par. I n t he aforem ent ioned decision, relied upon by t he learned Brief Holder, t he Court has not ent ered upon t he m erit s and t he binding effect of sub- sect ion ( 4) of Sect ion 75, and has relegat ed t he part ies t o t he alt ernat e rem edy t hat is available under law. I n t he inst ant case, t he pet it ioner has already approached t he Com pet ent Aut horit y, and availed of t he alt ernat e rem edy, and t he Appellat e Aut horit y has been pleased t o rej ect t he sam e, on t he ground of lim it at ion alone.

6. The Appellat e Aut horit y failed t o appreciat e t hat t he order im pugned, result s in civil consequences, and any proceedings, which result s in civil consequences t o t he pet it ioner, are required t o be passed aft er affording an opport unit y of hearing. I n t he case of CGST Act , t he Act it self, and in part icular sub- sect ion ( 4) of Sect ion 75, m andat es t hat an opport unit y of personal hearing ought t o be given t o t he part ies concerned, m ore so when t he aut horit ies cont em plat e an order adverse t o t he int erest of t he assessee.

7. I n t hat view of t he m at t er, we are of t he considered opinion t hat t he Appellat e Aut horit y has failed t o appreciat e t he set t led posit ion t hat no order, 4 affect ing civil right s of a cit izen, can be passed wit hout affording an opport unit y of hearing, and also failed t o appreciat e t he fact t hat t he m andat e, and t he schem e of t he Act it self, has been violat ed by t he concerned aut horit ies.

8. I n t hat view of t he m at t er, t he Writ Pet it ion is allowed. The order im pugned is set - aside. The m at t er is rem it t ed back t o t he Appellat e Aut horit y re- considerat ion in accordance wit h law. As a sequel t heret o, t he m iscellaneous pet it ions, if any pending, shall st and closed. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ G. N A REN DA R, C.J. _ _ _ _ _ _ _ _ _ _ _ _ _ A LOK M A H RA , J. Dt : 05 t h June, 2025 Rahul RAHUL PRAJAPATI DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=aa4fa3bee6691397758b14516ed 3e66e61bf4c848741983ed8c39e4145cf1d ab, postalCode=263001, st=UTTARAKHAND, serialNumber=303B55CC3063D34AC45BF 8A192FCAD15C390A1AAD7B39857D2540 AE4C28A4898, cn=RAHUL PRAJAPATI 5