S Kartik Traders Thru.Proprietor Mr.Santosh Gupta v. State Of U.P. Thru. Prin.Secy. Deptt. Of Tax And Registration Lko. And

1. Heard Sri Manish Kumar Shukla, learned counsel for the petitioner and Sri Vikram Soni, learned Additional Chief Standing Counsel for the State- respondents.

2. The submission of learned counsel for the petitioner is that the impugned orders have been passed without providing an adequate opportunity of hearing to the petitioner and in any case the impugned orders are in teeth of a Division Bench decision of this Court in Writ Tax No.303 of 2024 Mahaveer Trading Company vs. Deputy Commissioner, State Tax and Anr; 2024:AHC:38820-DB.

3. It is also urged that in the said decision of the Division Bench, an office memo No. 1406 dated 12.11.2024 passed by the Commissioner and addressed to all Additional Commissioners indicates that the date of personal hearing cannot be the date for which the reply to show cause has to be submitted. The date of reply to the show cause notice has to be prior to the date of personal hearing.

4. It is submitted that in the instant case, the show cause notice which was issued to the petitioner, a copy of which has been brought on record as Annexure No. 4 would indicate that the date of submitting reply was

23.12.2024 and the date of personal hearing is also shown as 23.12.2024 and accordingly, the same is bad. 2 WTAX No. 1107 of 2025

5. Sri Vikram Soni, learned Additional Chief Standing Counsel on the basis of written instructions submitted that there is no reason why the date of submitting reply as well as the date of personal hearing cannot be the same but could not dispute the fact that in the circular issued by the Revenue itself provides that the date of reply to the show cause notice of the date of a personal hearing would not be the same and the said circular has also been reproduced in the Division Bench decision of this Court in Mahaveer Trading (supra), hence, if not anything else the said circular is binding on the Department and its Authorities, hence, the submission of the learned Additional Chief Standing Counsel does not impress this Court.

6. Before adverting to the aforesaid submissions it will be appropriate to notice the observations made by the Division Bench of this Court in Mahaveer Trading Company (supra) wherein in paras-5 to 11 it was held that under: "5. It is basic to procedural law under taxing statutes that opportunity of personal hearing must be provided to an assessee before any assessment/adjudication order is passed against him. Thus, we find it strange and wholly unacceptable merely because the substantive law has changed, the revenue authorities have changed their approach and are failing to observe that mandatory requirement of procedural law. They have thus denied opportunity of hearing to the assessee.

6. Section 75(4) of the Act reads as below: "An opportunity of hearing shall 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."

7. Perusal of the impugned order reveals, the petitioner appeared before the competent authority on three dates. With respect to those dates, the impugned order reads as below: (i) "जारी नोटीस के अनुपालन में िदनांक 23/9/2022 को ्शी एफ०सी०चौहान (राजू चौहान) अिधव्वा फमर् उिपस्थत हुए। िनोटस का स्प्िीकरण ्ऺस्तुत िकया गया जो िनम्न (ii) "जारी नोटीस के अनुपालन में िदनांक 07/10/2022 को पुनः ्शी एफ०सी० चौहान (राजू चौहान) अिधव्वा फमर् उिपस्थ त हु ए। नोटीस का स् स्प्िीकरण ्ऺस्तुत िकया गया जो िनम्न है... 3 WTAX No. 1107 of 2025 (iii) "जारी नोटीस के अनुपालन में िदनांक 27/10/2022 को पुनः ्शी एफ०सी० चौहान (राजू चौहान) अिधव्वा फमर् उिपस्थत हुए। नोटीस का स्प्िीकरण ्ऺस्तुत िकया गया जो िनम्न है..........

8. Thus, it is established on record that on all three dates, the petitioner had been called to file its reply on the points specified in the respective show-cause notice issued. The petitioner submitted its reply on each occasion. Those replies have been extracted in the impugned order. After recording the reply submitted on 27.10.2022, the adjudicating authority has chosen to deal with the merits of the replies submitted and passed a merit order.

9. It transpires from the record, neither the adjudicating authority issued any further notice to the petitioner to show cause or to participate in the oral hearing, nor he granted any opportunity of personal hearing to the petitioner.

10. On query made, the learned Additional Chief Standing Counsel fairly submits, in light of similar occurrences, noticed in other litigation, he had apprised the Commissioner, Commercial Tax. In turn, the Commissioner, Commercial Tax, Uttar Pradesh, has issued Office Memo No. 1406 dated 12.11.2024. The same has been addressed to all Additional Commissioner to be communicated to all field formations for necessary compliance. A copy of the same has been made available to this Court. It reads as below: "1. The column in which date of personal hearing has to be mentioned, only N.A. is mentioned without mentioning any date.

2. The column in which time of personal hearing has to be mentioned, only N.A. is mentioned without mentioning time of hearing.

3. In some cases, the date of personal hearing is prior to which reply to the Show Cause Notice has to be submitted this is non-est and this practice has to be discontinued. The date of reply to the Show Cause Notice has to be definitely prior to the date of personal hearing.

4. In some cases, the date of personal hearing is on the same date to which reply to the Show Cause Notice has to be submitted-this is non-est and this practice has to be discontinued. The date of reply to the Show Cause Notice has to be definitely prior to the date of personal hearing.

5. In all cases observed, the date of passing order either u/s 73(9)/74(9) etc. of the Act is not commensurate to the date of personal hearing. It is trite law that the date of the order has to be passed on the date of personal hearing. For eg.,the date of furnishing 4 WTAX No. 1107 of 2025 reply to SCN is 15.11.2023 and date of personal hearing is 17.11.2023, then the date of order has to be 17.11.2023"

11. In view of the facts noted above, before any adverse order passed in an adjudication proceeding, personal hearing must be offered to the noticee. If the noticee chooses to waive that right, occasion may arise with the adjudicating authority, (in those facts), to proceed to deal with the case on merits, ex-parte. Also, another situation may exist where even after grant of such opportunity of personal hearing, the noticee fails to avail the same. Leaving such situations apart, we cannot allow a practice to arise or exist where opportunity of personal hearing may be denied to a person facing adjudication proceedings. "

7. Since the aforesaid dictum is applicable in the present facts and circumstances, accordingly, the impugned orders cannot be sustained and the orders dated 28.04.2024 and 03.04.2025 are accordingly quashed.

8. With the aforesaid, the present petition is allowed.

9. Matter is remanded to the assessing authority to pass fresh order after giving an opportunity of hearing to the petitioner. October 14, 2025 Asheesh (Jaspreet Singh,J.) ASHEESH KUMAR High Court of Judicature at Allahabad, Lucknow Bench

1. Heard Sri Manish Kumar Shukla, learned counsel for the petitioner and Sri Vikram Soni, learned Additional Chief Standing Counsel for the State- respondents.

2. The submission of learned counsel for the petitioner is that the impugned orders have been passed without providing an adequate opportunity of hearing to the petitioner and in any case the impugned orders are in teeth of a Division Bench decision of this Court in Writ Tax No.303 of 2024 Mahaveer Trading Company vs. Deputy Commissioner, State Tax and Anr; 2024:AHC:38820-DB.

3. It is also urged that in the said decision of the Division Bench, an office memo No. 1406 dated 12.11.2024 passed by the Commissioner and addressed to all Additional Commissioners indicates that the date of personal hearing cannot be the date for which the reply to show cause has to be submitted. The date of reply to the show cause notice has to be prior to the date of personal hearing.

4. It is submitted that in the instant case, the show cause notice which was issued to the petitioner, a copy of which has been brought on record as Annexure No. 4 would indicate that the date of submitting reply was

23.12.2024 and the date of personal hearing is also shown as 23.12.2024 and accordingly, the same is bad. 2 WTAX No. 1107 of 2025

5. Sri Vikram Soni, learned Additional Chief Standing Counsel on the basis of written instructions submitted that there is no reason why the date of submitting reply as well as the date of personal hearing cannot be the same but could not dispute the fact that in the circular issued by the Revenue itself provides that the date of reply to the show cause notice of the date of a personal hearing would not be the same and the said circular has also been reproduced in the Division Bench decision of this Court in Mahaveer Trading (supra), hence, if not anything else the said circular is binding on the Department and its Authorities, hence, the submission of the learned Additional Chief Standing Counsel does not impress this Court.

6. Before adverting to the aforesaid submissions it will be appropriate to notice the observations made by the Division Bench of this Court in Mahaveer Trading Company (supra) wherein in paras-5 to 11 it was held that under: "5. It is basic to procedural law under taxing statutes that opportunity of personal hearing must be provided to an assessee before any assessment/adjudication order is passed against him. Thus, we find it strange and wholly unacceptable merely because the substantive law has changed, the revenue authorities have changed their approach and are failing to observe that mandatory requirement of procedural law. They have thus denied opportunity of hearing to the assessee.

6. Section 75(4) of the Act reads as below: "An opportunity of hearing shall 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."

7. Perusal of the impugned order reveals, the petitioner appeared before the competent authority on three dates. With respect to those dates, the impugned order reads as below: (i) "जारी नोटीस के अनुपालन में िदनांक 23/9/2022 को ्शी एफ०सी०चौहान (राजू चौहान) अिधव्वा फमर् उिपस्थत हुए। िनोटस का स्प्िीकरण ्ऺस्तुत िकया गया जो िनम्न (ii) "जारी नोटीस के अनुपालन में िदनांक 07/10/2022 को पुनः ्शी एफ०सी० चौहान (राजू चौहान) अिधव्वा फमर् उिपस्थ त हु ए। नोटीस का स् स्प्िीकरण ्ऺस्तुत िकया गया जो िनम्न है... 3 WTAX No. 1107 of 2025 (iii) "जारी नोटीस के अनुपालन में िदनांक 27/10/2022 को पुनः ्शी एफ०सी० चौहान (राजू चौहान) अिधव्वा फमर् उिपस्थत हुए। नोटीस का स्प्िीकरण ्ऺस्तुत िकया गया जो िनम्न है..........

8. Thus, it is established on record that on all three dates, the petitioner had been called to file its reply on the points specified in the respective show-cause notice issued. The petitioner submitted its reply on each occasion. Those replies have been extracted in the impugned order. After recording the reply submitted on 27.10.2022, the adjudicating authority has chosen to deal with the merits of the replies submitted and passed a merit order.

9. It transpires from the record, neither the adjudicating authority issued any further notice to the petitioner to show cause or to participate in the oral hearing, nor he granted any opportunity of personal hearing to the petitioner.

10. On query made, the learned Additional Chief Standing Counsel fairly submits, in light of similar occurrences, noticed in other litigation, he had apprised the Commissioner, Commercial Tax. In turn, the Commissioner, Commercial Tax, Uttar Pradesh, has issued Office Memo No. 1406 dated 12.11.2024. The same has been addressed to all Additional Commissioner to be communicated to all field formations for necessary compliance. A copy of the same has been made available to this Court. It reads as below: "1. The column in which date of personal hearing has to be mentioned, only N.A. is mentioned without mentioning any date.

2. The column in which time of personal hearing has to be mentioned, only N.A. is mentioned without mentioning time of hearing.

3. In some cases, the date of personal hearing is prior to which reply to the Show Cause Notice has to be submitted this is non-est and this practice has to be discontinued. The date of reply to the Show Cause Notice has to be definitely prior to the date of personal hearing.

4. In some cases, the date of personal hearing is on the same date to which reply to the Show Cause Notice has to be submitted-this is non-est and this practice has to be discontinued. The date of reply to the Show Cause Notice has to be definitely prior to the date of personal hearing.

5. In all cases observed, the date of passing order either u/s 73(9)/74(9) etc. of the Act is not commensurate to the date of personal hearing. It is trite law that the date of the order has to be passed on the date of personal hearing. For eg.,the date of furnishing 4 WTAX No. 1107 of 2025 reply to SCN is 15.11.2023 and date of personal hearing is 17.11.2023, then the date of order has to be 17.11.2023"

11. In view of the facts noted above, before any adverse order passed in an adjudication proceeding, personal hearing must be offered to the noticee. If the noticee chooses to waive that right, occasion may arise with the adjudicating authority, (in those facts), to proceed to deal with the case on merits, ex-parte. Also, another situation may exist where even after grant of such opportunity of personal hearing, the noticee fails to avail the same. Leaving such situations apart, we cannot allow a practice to arise or exist where opportunity of personal hearing may be denied to a person facing adjudication proceedings. "

7. Since the aforesaid dictum is applicable in the present facts and circumstances, accordingly, the impugned orders cannot be sustained and the orders dated 28.04.2024 and 03.04.2025 are accordingly quashed.

8. With the aforesaid, the present petition is allowed.

9. Matter is remanded to the assessing authority to pass fresh order after giving an opportunity of hearing to the petitioner. October 14, 2025 Asheesh (Jaspreet Singh,J.) ASHEESH KUMAR High Court of Judicature at Allahabad, Lucknow Bench