IMPORTANT POINT
The main legal point established in the judgment is that the opportunity of hearing must be comprehensive and cannot be short-circuited, and it must provide a real and meaningful opportunity for a fair hearing.

JUDGMENT :

Goutam Bhaduri, J.

Heard.

1. The present appeal is against the Order dated 21.03.2024 passed in Writ Petition (Tax) No. 42 of 2024 (Mahindra and Mahindra Limited v. Union of India & Others), by the learned Single Judge, whereby, the appellant has been non-suited on the ground of alternate remedy.

2. According to the appellant, who is regular assessee, he was served with a notice under Section 73 (1) of the Central Goods and Services Tax Act, 2017 for a contemplated tax, not paid or short paid on 29.09.2023 (Annexure-P/8). According to the appellant, the last date for reply was fixed on 30.10.2023 and the appellant sought for extension of such time by Annexure-P/10 on 11.10.2023, i.e. reply within the prescribed timeline.

3. The submission of the appellant is that before the filing of the reply since date of personal hearing was fixed, under those circumstances, the extension of time was sought for. However, eventually, the order dated 29.12.2023 was passed. It is contended on behalf of the appellant that in a manner of this nature, before imposition of liability, sub-section 9 of Section 73 contemplates that the officer shall after considering the representation shall issue the order and Section 75 (4) mandates that opportunity of hearing shall be granted if the sufficient cause is shown and where any adverse decision is contemplated against the assessee. It is submitted that adverse order has been passed without giving any opportunity of hearing to the appellant, therefore, the rules of natural justice were defeated. The counsel placed his reliance on the decision of the Supreme Court in the matter of Kalpraj Dharamshi and another v. Kotak Investment Advisors Limited reported in 2021 10 SCC 401 and submits that in the cases of the like nature when the principles of natural justice has been given a go bye, the party can be free to invoke the jurisdiction under Article 226 of the Constitution of India, therefore, the order of learned Single Bench is bad in law. It is further submitted that Section 75 (5) further provides the manner of hearing which is to be granted during the proceeding and three hearings are statutory under sub-section 5 of Section 75 of CGST Act. He placed his reliance in the judgment passed by the High Court of Judicature at Bombay in the matter of Fino Paytech Limited v. Union of India, in Writ Petition No. 8965 of 2023 and the judgment of High Court of Allahabad, in the matter of MS KEC International Limited v. Union of India and three others, reported in 2024 (2) TMI 359. He submits therefore, the only prayer before this Court that the order dated 29.12.2023, be set aside and the appellant assessee be heard by opportunity of hearing before passing any adverse order.

4. Per contra, learned Advocate General would submit that demand of recovery notice under Section 73 (1) of C.G.S.T. Act, was served on 06.06.2023 by Annexure-P/6 to which a reply was filed on 03.07.2023. He would submit that the reading of Section 75 (4) of C.G.S.T Act, do not contemplate the opportunity of hearing to be given at every stage and the order would reflect that on date when the personal hearing was given on 11.10.2023 and 25.10.2023, no representative of the appellant had appeared. He would submit that in such case there is no violation of Section 75 (4) of the C.G.S.T. Act and otherwise the order of the learned Single Bench only delegated the parties to file an appeal and in order to avoid the filing of appeal to make statutory deposit which is mandatory, this route has been adopted by the appellant.

5. We have heard the learned counsel for the parties.

6. Before we venture into the issue as to how the order was culminated, it would be apt to refer the relevant Section of Central Goods and Service Tax Act.

7. Section 73 sub-section 1, which pertains to demand and recovery is reproduced hereunder.

THE CENTRAL GOODS AND SERVICES TAX ACT, 2017

Sec 73-Determination of tax not paid or short paid or erroneously refunded or input tax c