IMPORTANT POINT
The court emphasized the importance of adhering to the principles of natural justice and the mandate of Section 75(4) of the KSGST/CGST Act in the determination of tax under the Act.

JUDGMENT :

The petitioner is a registered taxable dealer under the Kerala State Goods and Services Tax Act, 2017/Central Goods and Services Tax Act, 2017 (KSGST/CGST Act). Pursuant to Ext. P3 show cause notice issued by the 2nd respondent State Tax Officer under Section 73(1) of the KSGST/CGST Act, the petitioner submitted Ext. P5 reply, which was handed over to the 3rd respondent during the personal hearing held on 17.05.2023 and later uploaded through online portal. The 3rd respondent, the Assistant State Tax Officer, finalized the assessment and passed Ext. P6 order under Section 73(9) of the KSGST/CGST Act.

2. The petitioner states that Ext. P6 order is not passed by the officer who heard the petitioner pursuant to Ext. P4 notice of hearing, but by an officer who never heard the petitioner. The petitioner contends that Ext. P6 order has been passed in violation of the principle 'he who decides must hear' and is against the provision under Section 75(4) which mandates personal hearing in cases where adverse decision is contemplated. Accordingly, this writ petition is filed to quash Ext. P6 order.

3. Heard Sri. Hrithwik D. Namboothiri, the learned counsel for the petitioner and Smt. Jasmine, the learned Government Pleader.

4. Smt. Jasmine, on instructions, submits that the officer who passed Ext. P6 did not hear the petitioner.

5. The doctrine 'he who heard must decide/he who decides must hear' applies to statutory authorities and their decisions, but not to institutional decisions, which negate the doctrine. The determination as to whether tax has not been paid or short paid or erroneously refunded, or where input tax credit has been wrongly availed or utilised etc requires individual adjudication and decision by the 'proper officer'. If the officer who hears does not render the decision determining the tax, it would amount to violation of principles of natural justice.

6. Section 75(4) of the KSGST/CGST Act provides that 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. The object of the provision is to ensure a fair determination of tax.

7. Ext. P6 order has been passed in violation of the principles of natural justice and the mandate of Section 75(4) of the KSGST/CGST Act, and the same is set aside.

The 3rd respondent shall pass fresh orders after affording an opportunity of hearing to the petitioner and in accordance with law. The petitioner shall appear before the 3rd respondent on 18.06.2024 without further notice of hearing and the 3rd respondent shall pass orders within one month thereafter.

The writ petition is disposed of.