M/S Radhey Narayan Industries Private Limited, Barabanki Thru. Director Shri Udit Singh v. State Of U.P. Thru. Prin. / Addl. Chief Secy., State Tax, Lko. And 2

1. Heard learned counsel for the petitioner and learned Standing Counsel for the State.

2. Learned counsel for the petitioner has submitted that a notice for intimating discrepancies in the return, after scrutiny was issued. Thereafter followed by a show cause notice dated 24.09.2023, but in the said notice, the date for submission of reply was fixed on 23.10.2023 and the date of personal hearing was also the same date. It is thus, urged that the two dates could not be the same which is contrary to the circular issued by the Department itself which has been taken note of by the Division Bench of this Court passed in Writ Tax No.303 of 2024 [Mahaveer Trading Company vs. Deputy Commissioner, State Tax and Anr; 2024:AHC:38820-DB].

4. Shri Vikram Soni, learned Additional Chief Standing Counsel could not dispute the fact that the circular issued by the Department, if not anything else, at least is pending on the Department and apparently there is an infraction of the circular.

5. 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: 2 WTAX No. 1130 of 2025 "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 नोिटस के अनुपालन में िदनांक 23/9/2022 को ्शी एफ०सी० चौहान (राजू चौहान) अिधव्वा फमर् उपिस्थत हुए। नोिटस का स्प्िीकरण ्ऺस्तुत िकया गया जो िनम्न (ii) "जारी नोिटस के अनुपालन में िदनांक 07/10/2022 को पुनः ्शी एफ०सी० चौहान (राजू चौहान) अिधव्वा फमर् उपिस्थत हुए। नोिटस का स्प्िीकरण ्ऺस्तुत िकया गया जो िनम्न है... (iii) "जारी नोिटस के अनुपालन में िदनांक 27/10/2022 को पुनः ्शी एफ०सी० चौहान (राजू चौहान) अिधव्वा फमर् उपिस्थत हुए। नोिटस 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 3 WTAX No. 1130 of 2025 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 4 WTAX No. 1130 of 2025 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 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. "

6. Since the aforesaid dictum is applicable in the present facts and circumstances, accordingly, the impugned orders cannot be sustained and the orders dated 29.12.2023 and 26.09.2025 are accordingly quashed.

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

8. Matter is remanded to the assessing authority to pass fresh order after giving an opportunity of hearing to the petitioner. October 15, 2025 Rakesh/- (Jaspreet Singh,J.) RAKESH PRAJAPAT High Court of Judicature at Allahabad, Lucknow Bench

1. Heard learned counsel for the petitioner and learned Standing Counsel for the State.

2. Learned counsel for the petitioner has submitted that a notice for intimating discrepancies in the return, after scrutiny was issued. Thereafter followed by a show cause notice dated 24.09.2023, but in the said notice, the date for submission of reply was fixed on 23.10.2023 and the date of personal hearing was also the same date. It is thus, urged that the two dates could not be the same which is contrary to the circular issued by the Department itself which has been taken note of by the Division Bench of this Court passed in Writ Tax No.303 of 2024 [Mahaveer Trading Company vs. Deputy Commissioner, State Tax and Anr; 2024:AHC:38820-DB].

4. Shri Vikram Soni, learned Additional Chief Standing Counsel could not dispute the fact that the circular issued by the Department, if not anything else, at least is pending on the Department and apparently there is an infraction of the circular.

5. 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: 2 WTAX No. 1130 of 2025 "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 नोिटस के अनुपालन में िदनांक 23/9/2022 को ्शी एफ०सी० चौहान (राजू चौहान) अिधव्वा फमर् उपिस्थत हुए। नोिटस का स्प्िीकरण ्ऺस्तुत िकया गया जो िनम्न (ii) "जारी नोिटस के अनुपालन में िदनांक 07/10/2022 को पुनः ्शी एफ०सी० चौहान (राजू चौहान) अिधव्वा फमर् उपिस्थत हुए। नोिटस का स्प्िीकरण ्ऺस्तुत िकया गया जो िनम्न है... (iii) "जारी नोिटस के अनुपालन में िदनांक 27/10/2022 को पुनः ्शी एफ०सी० चौहान (राजू चौहान) अिधव्वा फमर् उपिस्थत हुए। नोिटस 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 3 WTAX No. 1130 of 2025 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 4 WTAX No. 1130 of 2025 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 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. "

6. Since the aforesaid dictum is applicable in the present facts and circumstances, accordingly, the impugned orders cannot be sustained and the orders dated 29.12.2023 and 26.09.2025 are accordingly quashed.

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

8. Matter is remanded to the assessing authority to pass fresh order after giving an opportunity of hearing to the petitioner. October 15, 2025 Rakesh/- (Jaspreet Singh,J.) RAKESH PRAJAPAT High Court of Judicature at Allahabad, Lucknow Bench