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www.taxpublishers.in Uttar Pradesh Goods and Services Tax Act, 2017, Section 75 Constitution of India, 1950, Article 226 Determination of tax--Opportunity of personal hearing not provided to assessee--Validity of Conclusion: Where assessment order was passed without providing opportunity of personal hearing to the assessee, the said order was liable to set aside. Department passed assessment order against assessee without providing it an opportunity of personal hearing. The assessee contended that such action resulted in violation of principles of natural justice. *Held:* Affording opportunity of personal hearing is mandatory particularly where order is passed against assessee. In instant case, order was passed without affording an opportunity of personal hearing to the assessee in terms of section 75(4) of the UPGST Act, the said order was liable to set aside. Decision: In favour of assessee *Relied:* Shree Sai Palace v. State of U.P. & Anr. (Writ Tax No. 50 of 2023, dt. 21-02-2024) : 2024 TaxPub(GST) 625 (All-HC), Bharat Mint and Allied Chemicals v. Commissioner Commercial Tax & Ors. 2022 SCC OnLine All 1088 : 2022 TaxPub(GST) 0400 (All-HC) and Primeone Work Force Pvt. Ltd. v. Union of India 2024 :AHCLKO: 3533-DB : 2024 TaxPub(GST) 93 (All-HC) IN THE ALLAHABAD HIGH COURT SHEKHAR B. SARAF, J. Meera Glass Industries v. State of UP & Ors. Writ Tax No. 461 of 2024 3 April, 2024 Petitioner by: Vishwjit Respondent by: C.S.C. ORDER *Shekhar B. Saraf, J.* Heard Sri Vishwjit, counsel for the petitioner and the learned Standing Counsel for the State. 2. This is a writ petition under article 226 of the Constitution of India wherein the petitioner is aggrieved by the order dated 12-7-2023 passed by the Additional Commissioner, Grade 2, (Appeal), Judicial Division, State Tax, Mainpuri (hereinafter referred to as the 'Respondent No. 2') for the tax period of April, 2021. 3. Upon perusal of the record and after hearing of the counsel for the parties, it is clear that an opportunity of 'personal hearing' was not afforded to the petitioner which is a mandatory requirement under section 75(4) of the Uttar Pradesh Goods and Services Tax, Act, 2017 (hereinafter referred to as the "Act"). 4. The significance of the word "or'' in section 75(4) of the UPGST Act, 2017 cannot be underestimated. The usage of the word "or'' extends beyond its disjunctive function; it serves as a pivotal indicator of legislative intent regarding the necessity of providing an opportunity for personal hearing. By incorporating "or'' into the statutory language, lawmakers explicitly delineate two distinct scenarios in which the opportunity of personal hearing must be afforded: either upon application by the individual subject to penalty or tax imposition, or in the event of contemplation of an adverse order. Personal hearing represents a fundamental aspect of procedural fairness and natural justice, ensuring that individuals have the opportunity to present their case, respond to allegations, and address any concerns or mitigating factors directly to the decision-maker. It is a vital safeguard against arbitrary or unjust decisions. The inclusion of "or'' in section 75(4) of the UPGST Act, 2017, emphasizes the dual nature of the obligation to provide a personal hearing, accommodating both proactive requests from individuals seeking to defend their interests and reactive responses to adverse orders contemplated by tax authorities. In either scenario, the statutory mandate remains clear: the individual must be afforded an opportunity for personal hearing before any final determination is made regarding tax or penalty imposition. Moreover, the statutory mandate for personal hearing reflects an acknowledgement of the complex and multifaceted nature of tax and penalty determinations, which often involve intricate legal and factual considerations. Personal hearing provides a forum for nuanced discussion and exploration of these complexities, enabling decision-makers to make well-informed and equitable decisions based on a comprehensive understanding of the circumstances at hand. 5. This Court in M/s Shree Sai Palace v. State of U.P. and Another (Writ Tax No.50 of 2023 decided on 21-2-2024 : 2024 TaxPub(GST) 625 (All-HC), Neutral Citation No.2024:AHC:29522), relying on two judgments of coordinate Bench of this Court in Bharat Mint and Allied Chemicals v. Commissioner Commercial Tax and Others reported in 2022 SCC OnLine All 1088 : 2022 TaxPub(GST) 0400 (All-HC) and M/s Primeone Work Force Pvt. Ltd. v. Union of India, reported in 2024:AHCLKO: 3533-DB : 2024 TaxPub(GST) 93 (All-HC), in similar facts and circumstances has held that no orders can be allowed to pass through the legislative barriers of natural justice erected to safeguard individual rights and prevent abuse of power and that the opportunity of hearing is required to be afforded to the petitioner before passing orders. 6. In light of the above, let there be a writ of certiorari issued against the order dated 12-7-2023 and the order dated 18-8-2022. These orders are quashed and set aside. Consequential relief to follow. The respondent No. 3 is directed to grant an opportunity of personal hearing to the petitioner and thereafter pass a reasoned order in accordance with the law within a period of six weeks from date. 7. This writ petition is, accordingly, allowed.

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Uttar Pradesh Goods and Services Tax Act, 2017, Section 75

Constitution of India, 1950, Article 226

Determination of tax--Opportunity of personal hearing not provided to assessee--Validity of

Conclusion: Where assessment order was passed without providing opportunity of personal hearing to the assessee, the said order was liable to set aside.

Department passed assessment order against assessee without providing it an opportunity of personal hearing. The assessee contended that such action resulted in violation of principles of natural justice. Held: Affording opportunity of personal hearing is mandatory particularly where order is passed against assessee. In instant case, order was passed without affording an opportunity of personal hearing to the assessee in terms of section 75(4) of the UPGST Act, the said order was liable to set aside.

Decision: In favour of assessee

Relied: Shree Sai Palace v. State of U.P. & Anr. (Writ Tax No. 50 of 2023, dt. 21-02-2024) : 2024 TaxPub(GST) 625 (All-HC), Bharat Mint and Allied Chemicals v. Commissioner Commercial Tax & Ors. 2022 SCC OnLine All 1088 : 2022 TaxPub(GST) 0400 (All-HC) and Primeone Work Force Pvt. Ltd. v. Union of India 2024 :AHCLKO: 3533-DB : 2024 TaxPub(GST) 93 (All-HC)

IN THE ALLAHABAD HIGH COURT

SHEKHAR B. SARAF, J.

Meera Glass Industries v. State of UP & Ors.

Writ Tax No. 461 of 2024

3 April, 2024

Petitioner by: Vishwjit

Respondent by: C.S.C.

ORDER

Shekhar B. Saraf, J.

Heard Sri Vishwjit, counsel for the petitioner and the learned Standing Counsel for the State.

2. This is a writ petition under article 226 of the Constitution of India wherein the petitioner is aggrieved by the order dated 12-7-2023 passed by the Additional Commissioner, Grade 2, (Appeal), Judicial Division, State Tax, Mainpuri (hereinafter referred to as the 'Respondent No. 2') for the tax period of April, 2021.

3. Upon perusal of the record and after hearing of the counsel for the parties, it is clear that an opportunity of 'personal hearing' was not afforded to the petitioner which is a mandatory requirement under section 75(4) of the Uttar Pradesh Goods and Services Tax, Act, 2017 (hereinafter referred to as the "Act").

4. The significance of the word "or'' in section 75(4) of the UPGST Act, 2017 cannot be underestimated. The usage of the word "or'' extends beyond its disjunctive function; it serves as a pivotal indicator of legislative intent regarding the necessity of providing an opportunity for personal hearing. By incorporating "or'' into the statutory language, lawmakers explicitly delineate two distinct scenarios in which the opportunity of personal hearing must be afforded: either upon application by the individual subject to penalty or tax imposition, or in the event of contemplation of an adverse order. Personal hearing represents a fundamental aspect of procedural fairness and natural justice, ensuring that individuals have the opportunity to present their case, respond to allegations, and address any concerns or mitigating factors directly to the decision-maker. It is a vital safeguard against arbitrary or unjust decisions. The inclusion of "or'' in section 75(4) of the UPGST Act, 2017, emphasizes the dual nature of the obligation to provide a personal hearing, accommodating both proactive requests from individuals seeking to defend their interests and reactive responses to adverse orders contemplated by tax authorities. In either scenario, the statutory mandate remains clear: the individual must be afforded an opportunity for personal hearing before any final determination is made regarding tax or penalty imposition. Moreover, the statutory mandate for personal hearing reflects an acknowledgement of the complex and multifaceted nature of tax and penalty determinations, which often involve intricate legal and factual considerations. Personal hearing provides a forum for nuanced discussion and exploration of these complexities, enabling decision-makers to make well-informed and equitable decisions based on a comprehensive understanding of the circumstances at hand.

5. This Court in M/s Shree Sai Palace v. State of U.P. and Another (Writ Tax No.50 of 2023 decided on 21-2-2024 : 2024 TaxPub(GST) 625 (All-HC), Neutral Citation No.2024:AHC:29522), relying on two judgments of coordinate Bench of this Court in Bharat Mint and Allied Chemicals v. Commissioner Commercial Tax and Others reported in 2022 SCC OnLine All 1088 : 2022 TaxPub(GST) 0400 (All-HC) and M/s Primeone Work Force Pvt. Ltd. v. Union of India, reported in 2024:AHCLKO: 3533-DB : 2024 TaxPub(GST) 93 (All-HC), in similar facts and circumstances has held that no orders can be allowed to pass through the legislative barriers of natural justice erected to safeguard individual rights and prevent abuse of power and that the opportunity of hearing is required to be afforded to the petitioner before passing orders.

6. In light of the above, let there be a writ of certiorari issued against the order dated 12-7-2023 and the order dated 18-8-2022. These orders are quashed and set aside. Consequential relief to follow. The respondent No. 3 is directed to grant an opportunity of personal hearing to the petitioner and thereafter pass a reasoned order in accordance with the law within a period of six weeks from date.

7. This writ petition is, accordingly, allowed.