Why cannot be the date of submission of reply and the date of personal hearing be the same, we are not aware of any such law – Allahabad High Court
In a recent judgment, Hon’ble Allahabad High Court has dismissed the Petition of the assessee against the GST order holding that the Bench is not aware of any law which prohibits the date of submission of reply and the date of personal hearing to be the same.
ABCAUS Case Law Citation:
4505 (2025) (04) abcaus.in HC
In the notable case of Mahaveer Trading Company decided in March 2024, a Division Bench of the Hon’ble Allahabad High Court had the occasion to deal with the validity of the order passed under section 74 of the UPGST Act 2017 (the Act) without offering an opportunity of personal hearing in accordance of section 75(4) of the Act.
The Hon’ble High Court held 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, or even after grant of such opportunity of personal hearing, the noticee fails to avail the same, the adjudicating authority may proceed to deal with the case on merits, ex-parte. However, practice to where opportunity of personal hearing may be denied to a person facing adjudication proceedings can not be allowed.
It is to be noted that while adjudicating the issue of non opportunity in Mahaveer Trading case, the Hon’ble High Court had relied upon the Office memo no. 1406 issued by Commissioner, Commercial Tax, Uttar Pradesh. The para 4 of the said memo stated as under:
“4. In some cases, the date of personal hearing is on the same date to which reply to the Show Cause Notice has to be submitted-this is non-est and this practice has to be discontinued. The date of reply to the Show Cause Notice has to be definitely prior to the date of personal hearing.”
As per settled law, the circular issued by Commissioner, Commercial Tax, Uttar Pradesh would be binding on the State GST authorities.
Now coming to the recent judgment of another Division Bench of the Allahabad High Court where their lordships dismissed the Petition of the assessee challenging order passed under Section 73(9) of the UP Goods and Services Tax Act, 2017 observing that they failed to understand why cannot date of submission of reply and the date of personal hearing be the same.
In the said case, the Petitioner challenged the assessment order on the ground that the date of notice and the date of personal hearing was same. Though this fact was found to be factually incorrect, the date by which reply to notice under Section 73(1) had to be submitted and the date of personal hearing was the same.
However, the Petitioner took the plea that the date of submission of reply and the date of personal hearing cannot be the same.
Their Lordships rejected the above ground and observed “we fail to understand as to why it cannot be the same. We are not aware of any such law.”
The Petitioner had relied upon a judgment of the Hon’ble Allahabad High Court in a case where opportunity of personal hearing was not at all afforded to the assessee. For this reason, the Hon’ble High Court rejected the reliance placed by the assessee on the said judgment and observed that judgment relied upon by the Petitioner does not say so.
Their Lordships further observed that a second show cause notice was also issued to the petitioner under Section 73 but, even that was not availed just as the prior notice and thereafter the order had been passed.
In view of the above, their Lordships declined to interfere in the matter and dismissed the Writ Petition.
ABCAUS Note:
Apparently, the case is fully covered by the decision in Mahaveer Trading Company. From the order of the Hon’ble High Court, it appears that the Bench was not apprised of the decision in Mahaveer Trading Company or the said Office Memo issued by the Commissioner, Commercial Tax, UP. It is also not mentioned in the order whether the date fixed for submission of reply to the second show cause notice and the date of personal hearing was the same or not.
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