2025(01)LCX0560

K.A.V SHAIK ROWTHER

Versus

ASSISTANT COMMISSIONER

WP(C) NO. 3340 OF 2025 decided on 28-01-2025

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT

THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

TUESDAY, THE 28^TH DAY OF JANUARY 2025 / 8TH MAGHA, 1946

WP(C) NO. 3340 OF 2025

PETITIONER:

K.A.V. SHAIK ROWTHER
42/815, MARKET ROAD
PALAKKAD, PIN - 678014
(REPRESENTED BY SRI. A.M.SHAIK AFSAL, PARTNER)

BY ADVS.
K.N.SREEKUMARAN
P.J.ANILKUMAR (A-1768)
S.JAFFERALI

RESPONDENTS:

1 ASSISTANT COMMISSIONER
CENTRAL TAX AND CENTRAL EXCISE,
PALAKKAD DIVISION, CENTRAL REVENUE BUILDING,
METTUPALAYAM STREET, PALAKKAD, PIN - 678001

2 SUPERINTENDENT
CENTRAL TAX AND CENTRAL EXCISE,
PALAKKAD DIVISION, CENTRAL REVENUE BUILDING,
METTUPALAYAM STREET, PALAKKAD, PIN - 678001

3 PRINCIPAL COMMISSIONER
CENTRAL TAX AND CENTRAL EXCISE CENTRAL REVENUE
BUILDING MANNAMCHIRA ROAD,
KOZHIKODE, PIN - 673001

4 PRINCIPAL CHIEF COMMISSIONER
CENTRAL TAX AND CENTRAL EXCISE CENTRAL REVENUE
BUILDING, I S PRESS ROAD, KACHERIPADI,
ERNAKULAM, PIN – 682018

BY ADV. V.GIRISHKUMAR,
STANDING COUNSEL

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.01.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

BECHU KURIAN THOMAS, J.

W.P.(C). No.3340 of 2025

Dated this 28^th day of January, 2025

JUDGMENT

Petitioner is a wholesale dealer in building materials and is registered under the Goods and Services Tax Act. During scrutiny of the returns for the financial year 2020-21, since certain anomalies were noticed, a show cause notice was issued under Section 73 of the Central Goods & Services Tax Act/State Goods and Services Tax Act, 2017 on 20.11.2024, directing the petitioner to file a reply by 27.12.2024 and to appear for a hearing on 06.01.2025. After receipt of the show cause notice, a reply notice was filed on the last date fixed for submitting the reply, i.e., 27.12.2024. Subsequently, when the matter was taken up for consideration on 06.01.2025 - the date fixed for hearing, there was no appearance on behalf of the petitioner and an order was passed on 16.01.2025, determining the amount of tax, penalty and interest due. Petitioner assails the aforesaid order under Article 226 of the Constitution of India contending that there was a violation of the principles of natural justice.

2. I have heard Sri. K.N. Sreekumaran, the learned counsel for the petitioner as well as Sri. l V. Girishkumar, the learned Standing Counsel for the respondents.

3. A perusal of Exhibit-P3 summary of show cause notice dated 27.11.2024 reveals that petitioner was granted time to file a reply by 27.12.2024 and the date of hearing was fixed at 12.10 p.m. on 06.01.2025. The venue was also specifically mentioned therein. In the reply notice, petitioner had, requested for dropping the proposal and also to grant 15 days time to file clarifications to one of the issues noticed apart from an opportunity of hearing. However, on the date fixed for hearing, i.e., 06.01.2025, none appeared, and the proper officer proceeded to issue Exhibit-P6 impugned order. Though petitioner has an appellate remedy under Section 107 of the Central Goods & Services Tax Act, he has chosen to file this writ petition alleging violation of the principles of natural justice.

4. A perusal of the records, Exhibit-P3, Exhibit-P4 and Exhibit-P6 indicates that, though petitioner was granted an opportunity of hearing on 06.01.2025, he failed to appear. Thereafter he has now turned around and stated that there is a violation of principles of natural justice in not granting an opportunity of hearing. Failure to avail an opportunity of hearing is different from not granting such an opportunity. When the latter amounts to violation of the principles of natural justice, the former is a default on the part of the person who is proceeded against, which cannot be regarded as failure to grant an opportunity of hearing. The contention of the petitioner that he had sought 15 days time for hearing is not entirely correct, as the objection filed by the petitioner reveals that he sought 15 days time to produce one record. The opportunity of being heard sought for by the petitioner was already granted to him with a date fixed as 06.01.2025. In such circumstances, the contention that there was violation of principles of natural justice while passing Exhibit-P6 order is not legally tenable.

5. The contention raised against Exhibit-P6 falls in the realm of disputed facts for which the remedy is to pursue the statutory remedies, in accordance with law.

Hence, reserving the liberty of the petitioner to pursue the statutory remedies available under law against Exhibit-P6, this writ petition is dismissed.

Sd/-            
BECHU KURIAN THOMAS
JUDGE