2024(09)LCX0571

Allahabad High Court

Wonder Enterprises

Versus

Additional Commissioner

WRIT TAX No. - 1150 of 2024 decided on 12-09-2024

Neutral Citation No

Neutral Citation No. - 2024:AHC:149222

Court No. - 2

Case :- WRIT TAX No. - 1150 of 2024

Petitioner :- M/S Wonder Enterprises
Respondent :- Additional Commissioner Grade-2 And Another
Counsel for Petitioner :- Aditya Pandey
Counsel for Respondent :- C.S.C.

Hon'ble Piyush Agrawal,J.

1. Rejoinder affidavit filed today on behalf of the petitioner is taken on record.

2. Heard Sri Aditya Pandey, learned counsel for the petitioner and Sri Ravi Shanker Pandey, learned Additional Chief Standing Counsel for the State-respondents.

3. By means of instant writ petition, the following prayer has been made:-

"I. Issue a writ, order or direction in the nature of certiorari for quashing the impugned order dated 07.03.2024 passed by respondent no.1 in Appeal No.GST AD0905220410341/2022, F.Y. 2018-19, under the provisions of Section 74 of the UPGST/CGST Act (Annexure No.1 to the writ petition).

II. Issue a suitable writ, order or direction in the nature of certiorari for quashing the ex-parte order dated 06.10.2021 passed by respondent no.2 under Section 74 of the UPGST/CGST ACt for the tax period of April, 2018 to June 2018, F.Y. 2018-19.

III. .......

IV. ........"

4. Learned counsel for the petitioner submits that on the date of hearing of appeal, the order was not passed by the and therefore, the order impugned is bad. He further submits that pursuant to said argument, on 30.07.2024, a counter affidavit was called by the Court from the State duly sworn by respondent no.3, which was filed on 14.08.2024, wherein State-respondent no.3 has placed reliance on the First Appeal Manual dated 20.03.2015 issued by the Commissioner, Commercial Tax, mentioning therein that after hearing the appeal, order can be passed on the later date, this fact has seriously been opposed by the counsel for the petitioner on the ground that no such circular/power or provision under the GST Act, which could empower the authority not to pass the order on the later date of hearing, the said fact is mentioned in para no.4 of counter affidavit filed by the Commissioner, State Tax U.P., Lucknow which reads as under:-

"........

It is clear that first appeal manual dated 20.03.2015 issued by the Commissioner, Commercial Tax is not covered by the above mentioned saving clause in relation to the filing of the appeals under the GST Act. Hence, it is not applicable in the matters relating to GST"

5. Once the higher authority under the GST Act and the counsel appearing for the State has accepted the fact that there is no such provision for passing an order on a later date of hearing, the impugned order 07.03.2024 passed by respondent no.1 in Appeal No.GST AD0905220410341/2022, F.Y. 2018-19 cannot sustain in the eyes of law and the same is liable to be dismissed.

6. In view of the above facts as stated the impugned orders are hereby set aside.

7. The writ petition is allowed, accordingly.

8. The matter is remanded to the Additional Commissioner Grade-2, (Appeal)-5th, State Tax, Kanpur for deciding afresh by passing a reasoned and speaking order, after affording opportunity of hearing to all the stakeholders, within a period of three months from the date of production of certified copy of this order, without granting any unnecessary adjournment to either of the parties.

Order Date :- 12.9.2024