Judgements on the Principle of Opportunity of Being Heard
Latin Maxim: “audi alteram partem” - No one should be condemned unheard
The opportunity of hearing, which the Officer is statutorily required to give to the person against whom an adverse decision is contemplated, is not an empty formality, and is a well-recognised principle of audi alteram partem, which has rightly been incorporated in Section 75(3) and 75(4) of the CGST Act.
Reproducing provision of Section 75(3) , (4) and (5)
“(3) Where any order is required to be issued in pursuance of the direction of the Appellate Authority or Appellate Tribunal or a court, such order shall be issued within two years from the date of communication of the said direction.
(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.
(5) The proper officer shall, if sufficient cause is shown by the person chargeable with tax, grant time to the said person and adjourn the hearing for reasons to be recorded in writing:
Provided that no such adjournment shall be granted for more than three times to a person during the proceedings.”
Common issues in date of hearing:
The column in which date of personal hearing has to be mentioned, only N.A. is mentioned without mentioning any date.
In some cases, the date of personal hearing is prior to which reply to the Show Cause Notice has to be submitted. Reply to the Show Cause Notice has to be definitely prior to the date of personal hearing.
Judgements on the Principle of "Opportunity of Being Heard"
M/s.Vel Steel Tubes and Engineering Pvt. Ltd IN THE HIGH COURT OF JUDICATURE AT MADRAS
An assessment order dated 09.10.2023 is challenged on the ground that personal hearing was not offered after receipt of the petitioner's reply. For reasons set out above, the impugned order dated 09.10.2023 is quashed and the matter is remanded for reconsideration. The petitioner is permitted to submit any documents in support of the reply within a maximum period of two weeks from the date of receipt of a copy of this order. Upon receipt thereof, the assessing officer is directed to provide a reasonable opportunity to the petitioner, including a personal hearing, and thereafter issue a fresh assessment order within two months from the date of receipt of the petitioner's reply.
Virat Agencies Vs State of U.P. (Allahabad High Court) - In the said case noted that 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.
Concord Tieup Pvt. Ltd. vs. State of Madhya Pradesh (2023) 7 Centax 38 (M.P.) - Where principle of natural justice was violated as opportunity of hearing was not granted before passing of adjudication order, availability of alternative remedy would not come in way for exercising writ petition challenging adjudication order. The SCN inter alia mention about personal hearing to the effect that “you may appear before the undersigned for personal hearing either in person or through authorized representative for representing your case on the date, time and venue, if mentioned in table below”, however, no date, time and venue for personal hearing was shown in the SCN.
The Hon’ble Madhya Pradesh High Court in Writ Petition no.26956 of 2022 held as under: Relied upon, the case of Bharat Mint & Allied Chemicals v. Commissioner of Commercial Tax, 2022 (59) G.S.T.L. 394 (All.), wherein the Hon’ble Allahabad High Court held that opportunity of hearing has to be granted by Revenue Department either on request of the person chargeable with tax for opportunity of hearing or where any adverse decision is given against such person. Observed that, the SCN failed to provide opportunity of personal hearing before passing the Impugned Order.
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