Nova Homa Care
Versus
Addl. Commissioner
WRIT TAX No. - 1035 of 2025 decided on 09-10-2025
HIGH COURT OF JUDICATURE AT
ALLAHABAD
LUCKNOW
WRIT TAX No. - 1035 of 2025
M/S Nova Homa Care Thru.
Proprietor Shri
Sanjeev Jaiswal
.....Petitioner(s)
Versus
Addl. Commissioner Grade-2 Appeal
Iv State Tax
Lko. And Another
.....Respondent(s)
Counsel for Petitioner(s)
: Vikas Singh, Raja Babu Gupta
Counsel for Respondent(s) : C.S.C.
Court No. - 6
HON'BLE JASPREET SINGH, J.
1. Heard learned counsel for the
petitioner and learned Standing Counsel for the State.
2. Present petition has been filed challenging the order dated 11.12.2023 passed
under Section 73 of the U.P. Goods and Services Tax Act, 2017 (for short, 'the
GST Act') as well as the order dated 09.09.2025 whereby the appeal was dismissed
as being beyond limitation.
3. Contention of learned counsel for the petitioner is that no opportunity of
hearing was granted while passing the order under Section 73 of the GST Act. It
has also pointed out that in absence of any opportunity the order impugned
cannot be sustained and this issue was dealt 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. Learned Standing Counsel, on the basis of the instructions, states that in so
far as the issue of opportunity of hearing is concerned, no date was fixed for
personal hearing.
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:
"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:
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 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 11.12.2023 & 09.09.2025 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.
(Jaspreet Singh,J.)
October 9, 2025