Allahabad High Court
Case Details
HIGH COURT OF JUDICATURE AT ALLAHABAD WRIT TAX No. - 2559 of 2025 M/S Dev Associates State Of U.P, And 2 Others Versus .....Petitioner(s) .....Respondent(s) Counsel for Petitioner(s) Counsel for Respondent(s) : Nishant Mishra, Vedika Nath : C.S.C. Court No. - 7 HON'BLE PIYUSH AGRAWAL, J. 1. Rejoinder affidavit filed today is taken on record.
Legal Reasoning
this Court in the case of M/s Surya Associates vs. Union of India and two others passed in Writ Tax No.1397 of 2024 vide order dated 21.10.2024. 7. Per contra, learned Standing Counsel supports the impugned orders and submits that twice opportunities was given to the petitioner to submit his reply but the petitioner in his wisdom has choose not to submit his reply, therefore, the impugned orders are correct. He further submits that the petitioner has filed an appeal beyond the period prescribed under the law, therefore, there is no power to condone the delay beyond the prescribed period of limitation. However, he do not dispute the legal proposition enumerated in the judgment passed by this Court in M/s Aditya Singh through Proprietor Sh. Aditya Singh (Supra). 8. After hearing the learned counsel for the parties, the Court has perused the record. 9. The record shows that second reminder notice was given to the petitioner fixing the date for submission of the reply on 04.08.2024 but the date of personal hearing was given prior to it, i.e., 3.08.2024 which itself shows no application of mind. The record further shows that even on the dates of personal hearing, i.e., 03.08.2024, the order was not passed rather the impugned order was passed on 17.08.2024. The record also shows that neither any notice was issued to the petitioner fixing the date 17.08.2024 nor any communication has been brought on record. Under the Act, there is no provision prescribed for passing any order on an another date without due notice to the petitioner. 3 WTAX No. 2559 of 2025 10. This Court in the case of M/s Aditya Singh (Supra) has held as under: "3. Upon a perusal of the documents, it appears that the order was passed ex parte and was not passed on the date fixed for hearing and for subsequent date no notice was given to the petitioner. 4. Learned counsel appearing on behalf of the petitioner has relied on the coordinate Bench judgment of this Court in M/s Shubham Steel Traders Vs. State of U.P. and Another, Neutral Citation No. - 2024:AHC:31108-DB. The relevant extract of the said judgement is provided below :- "8. Thus relying on Coordinate Bench decision of this Court in M/S Videocon D2H Limited and Ors. Vs. State of U.P. and 3 Ors (2016) 93 UPTC 237, M/S Aroma Chemicals Vs. Union of India & Ors Neutral Citation No.-2014:AHC:60699-DB, it has been submitted, such an order may not stand. 10. Rules of natural justice ensure fairness in proceedings. Once the authority had fixed the matter for hearing on 06.11.2023 it was incumbent on that authority either to pass the order or to fix another date and communicate the same to the petitioner. Communication of the other date was necessary as according to the assessing authority the petitioner failed to appear before it on the date fixed on 06.11.2023. 11. By not passing the order on 06.11.2023 and not communicating the next date fixed in the proceedings, the assessing authority forced the ex-parte nature of the order on the petitioner, by its own conduct." 5. In light of the same, as the facts of the present case are similar to one in M/s Shubham Steel Traders (supra), we see no reason why this Court should take a different view of the matter. Accordingly, the impugned order dated December 29, 2022 is quashed and set aside with a direction upon the authority concerned to grant an opportunity of personal hearing to the petitioner and thereafter, pass a reasoned order in accordance with law.
Arguments
2. Heard Sri Tanmay Sadh, holding brief of Sri Nishant Mishra, learned counsel for the petitioner and learned Standing Counsel for the State- respondents. 3. The present writ petition has been filed assailing the order dated 30.04.2025 passed by respondent no.2/Additional Commissioner, Grade-2, (Appeals), State Tax, Gorakhpur as well as impugned order dated 17.08.2024 passed by the respondent no. 3/Deputy Commissioner, Section- 2, Gorakhpur, U.P. 4. Counsel for the petitioner submits that proceedings under section 73 of the GST Act were initiated against the petitioner and notice was issued to the petitioner in which the date of personal hearing was mentioned as 13.06.2024 but against the time of personal hearing and venue of personal hearing was mentioned as 'N.A.' Another notice was issued to the petitioner on 26.07.2024 where the date for submission of reply was mentioned as 04.08.2024 and date for personal hearing was fixed as 3.08.2024 which was the date prior to the last date of submission of reply. He further submits that date of personal hearing cannot be the date prior to the date of requirement to submit a reply. But the impugned order has been passed on the later date, i.e. 17.08.2024 to which the petitioner was never put to notice. 5. After having knowledge of the impugned order being passed, the petitioner filed an appeal, which has been dismissed on the ground of latches as it was beyond the period of limitation. While dismissing the appeal, the 2 WTAX No. 2559 of 2025 merits of the case was not such upon, therefore, the doctrine of merger will not apply. He further submits that section 75 (4) of the GST Act provides that a personal hearing to be provided to the petitioner in the absence of the compliance of the same, the impugned orders cannot be sustained in the eyes of law. 6. In support thereof, learned counsel for the petitioner relied upon the Division Bench judgment of this Court in the case of M/s Aditya Singh through Proprietor Sh. Aditya Singh vs. Assistant Commissioner, CGST and Central Excise and others (Neutral Citation No.2024:AHC:197056- DB). He further submits that since the appeal has been dismissed on the ground of limitation the doctrine of merger will not apply. In support of his submission, learned counsel for the petitioner relies upon the judgment of
Decision
6. With the aforesaid direction, the writ petition is disposed of." 11. In view of above, the controversy involved in the present case is squarely covered with the decision of this Court in M/s Aditya Singh (supra). 12. The writ petition is allowed and the impugned orders are set aside. 4 WTAX No. 2559 of 2025 13. The matter is remanded to the adjudicating authority who shall pass a reasoned and speaking order within four weeks from today, after giving reasonable opportunity of personal hearing to the petitioner and if the reply is submitted within above prescribed period, the authority shall make all endeavours to decide the same within further period of two months. September 12, 2025 Monika (Piyush Agrawal,J.) Digitally signed by :- Digitally signed by :- Digitally signed by :- MONIKA KESARWANI MONIKA KESARWANI MONIKA KESARWANI High Court of Judicature at Allahabad High Court of Judicature at Allahabad High Court of Judicature at Allahabad