M/S Ajay Glass House Thru. Proprietor Ajay Kumar Tiwari Gstin 09ajrpt9271g1zb v. State Of U.P. Thru. Prin. Secy. Deptt. Of Finance Lko. And 2 Others

benefit of the decisions of this Court in [Mahavir Trading Company Vs. Deputy Commissioner, State Tax and Anr; 2024: AHC:38820-DB.]

4. In the instant case, though, he was granted time till 15.01.2025 to file his response and 22.01.2025 was fixed as the date of personal hearing but the fact remains that the petitioner did not furnish the reply nor participated and in the given circumstances, the petitioner furnished his written reply on 26.01.2025 on the portal which was considered whereafter the impugned order was passed.

5. Considering this aspect of the matter and apparently, it would have 2 WTAX No. 1257 of 2025 been open for the respondent-authorities to have passed an order since the petitioner did not participate nor filed his written submissions but the moment, the petitioner after the date on 22.01.2025 had filed his reply on

26.01.2025 on the portal and the same was considered then before passing the order, an opportunity of personal hearing should have been granted.

6. Sri Vikram Soni, learned Additional Chief Standing Counsel for the State has pointed out that prior to 08.01.2025, two earlier notices were issued and time was granted to the petitioner to furnish his reply as well as the date of personal hearing, was separately mentioned.

7. 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 नोिटस के अनुपालन म(cid:517) िदनांक 23/9/2022 को (cid:361)ी एफ०सी० चौहान (राजू चौहान) अिधव(cid:472)ा फम(cid:259) उपि(cid:293)थत (cid:631)ए। नोिटस का (cid:293)प(cid:504)ीकरण (cid:352)(cid:293)तुत िकया गया जो िन(cid:286)न (ii) "जारी नोिटस के अनुपालन म(cid:517) िदनांक 07/10/2022 को पुनः (cid:361)ी एफ०सी० चौहान (राजू चौहान) अिधव(cid:472)ा फम(cid:259) उपि(cid:293)थत (cid:631)ए। नोिटस का (cid:293)प(cid:504)ीकरण (cid:352)(cid:293)तुत िकया गया जो िन(cid:286)न है... 3 WTAX No. 1257 of 2025 (iii) "जारी नोिटस के अनुपालन म(cid:517) िदनांक 27/10/2022 को पुनः (cid:361)ी एफ०सी० चौहान (राजू चौहान) अिधव(cid:472)ा फम(cid:259) उपि(cid:293)थत (cid:631)ए। नोिटस का (cid:293)प(cid:504)ीकरण (cid:352)(cid:293)तुत िकया गया जो िन(cid:286)न 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. 4 WTAX No. 1257 of 2025

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. "

8. Since the aforesaid dictum is applicable in the present facts and circumstances, accordingly, the impugned orders cannot be sustained and the orders dated 31.01.2025 & 08.08.2025 are accordingly quashed.

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

10. Matter is remanded to the assessing authority to pass fresh order after giving an opportunity of hearing to the petitioner. November 6, 2025 Asheesh (Jaspreet Singh,J.) ASHEESH KUMAR High Court of Judicature at Allahabad, Lucknow Bench

benefit of the decisions of this Court in [Mahavir Trading Company Vs. Deputy Commissioner, State Tax and Anr; 2024: AHC:38820-DB.]

4. In the instant case, though, he was granted time till 15.01.2025 to file his response and 22.01.2025 was fixed as the date of personal hearing but the fact remains that the petitioner did not furnish the reply nor participated and in the given circumstances, the petitioner furnished his written reply on 26.01.2025 on the portal which was considered whereafter the impugned order was passed.

5. Considering this aspect of the matter and apparently, it would have 2 WTAX No. 1257 of 2025 been open for the respondent-authorities to have passed an order since the petitioner did not participate nor filed his written submissions but the moment, the petitioner after the date on 22.01.2025 had filed his reply on

26.01.2025 on the portal and the same was considered then before passing the order, an opportunity of personal hearing should have been granted.

6. Sri Vikram Soni, learned Additional Chief Standing Counsel for the State has pointed out that prior to 08.01.2025, two earlier notices were issued and time was granted to the petitioner to furnish his reply as well as the date of personal hearing, was separately mentioned.

7. 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 नोिटस के अनुपालन म(cid:517) िदनांक 23/9/2022 को (cid:361)ी एफ०सी० चौहान (राजू चौहान) अिधव(cid:472)ा फम(cid:259) उपि(cid:293)थत (cid:631)ए। नोिटस का (cid:293)प(cid:504)ीकरण (cid:352)(cid:293)तुत िकया गया जो िन(cid:286)न (ii) "जारी नोिटस के अनुपालन म(cid:517) िदनांक 07/10/2022 को पुनः (cid:361)ी एफ०सी० चौहान (राजू चौहान) अिधव(cid:472)ा फम(cid:259) उपि(cid:293)थत (cid:631)ए। नोिटस का (cid:293)प(cid:504)ीकरण (cid:352)(cid:293)तुत िकया गया जो िन(cid:286)न है... 3 WTAX No. 1257 of 2025 (iii) "जारी नोिटस के अनुपालन म(cid:517) िदनांक 27/10/2022 को पुनः (cid:361)ी एफ०सी० चौहान (राजू चौहान) अिधव(cid:472)ा फम(cid:259) उपि(cid:293)थत (cid:631)ए। नोिटस का (cid:293)प(cid:504)ीकरण (cid:352)(cid:293)तुत िकया गया जो िन(cid:286)न 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. 4 WTAX No. 1257 of 2025

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. "

8. Since the aforesaid dictum is applicable in the present facts and circumstances, accordingly, the impugned orders cannot be sustained and the orders dated 31.01.2025 & 08.08.2025 are accordingly quashed.

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

10. Matter is remanded to the assessing authority to pass fresh order after giving an opportunity of hearing to the petitioner. November 6, 2025 Asheesh (Jaspreet Singh,J.) ASHEESH KUMAR High Court of Judicature at Allahabad, Lucknow Bench