Julie Jose Vs State Tax officer
Date: September 4, 2023
Subject Matter
PH is mandatory when an adverse decision is contemplated
Summary
In this case, the petitioner, who is the assessee under the CGST and SGST provisions, has filed a writ petition challenging an assessment order (Exhibit P-4) made under Section 73 of the Kerala GST Act. The only ground for challenge is that the petitioner was not afforded an opportunity of hearing as required by Section 75 of the GST Act. The government pleader has not disputed this contention. The court, considering the provisions and facts, finds a violation of Section 75(4) and sets aside the impugned order, remitting the matter back to the first respondent for a fresh assessment order after affording the petitioner an opportunity of personal hearing. The petitioner is directed to appear before the first respondent on a specified date to make submissions regarding the Show Cause Notice issued for finalization of the assessment order.
FULL TEXT OF THE JUDGMENT/ORDER OF KERALA HIGH COURT
1. Heard Mr. Harisankar V. Menon, Learned Counsel for the petitioner and Ms. Jasmine M. M., Learned Government Pleader for the respondents.
2. The present writ petition has been filed by the petitioner, who is the assessee under the provisions of the CGST and SGST challenging Exhibit P-4 assessment order made under Section 73 of the Kerala GST Act. The only ground which has urged in this writ petition is that the petitioner is not afforded with an opportunity of hearing as mandated under Section 75 of the GST Act. The Learned Government Pleader fairly has not disputed the said contention of the Learned Counsel for the petitioner. Sub-Section (4) of Section 75 of the GST Act provides as under.
“(4). 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.”
3. The petitioner has requested for a personal hearing in the matter resulted from the impugned order itself. Despite the contention which is made by the petitioner for personal hearing, the assessment has been completed under Section 73 of the Kearla GST Act without affording an opportunity of personal hearing.
4. Considering the aforesaid provision and facts, I find there has been violation of Sub Section 4 of Section 75 of the GST Act and, therefore, the impugned order is hereby set aside and the matter is remitted back to the file of the 1 st respondent for passing fresh assessment order after affording an opportunity of personal hearing to the petitioner. The petitioner is directed to appear before the 1st respondent on 20.09.2023 and make his submission with respect to the Show Cause Notice issued to him for finalization of the assessment order. It is made clear that no notice of hearing shall be given to the petitioner.
With the aforesaid directions the writ petition is allowed and the impugned order is set aside without cost.