Allahabad High Court: Section 75 Mandates Fresh Hearing Date Before Ex-Parte Order

The Issue

Whether a GST assessment order can be sustained if it was passed ex-parte without fixing a specific date for a personal hearing or without issuing a fresh notice for a subsequent hearing after the initial deadline lapsed.

The Facts

Procedural Lapse: The respondent authority passed an adjudication order under Section 73/74 of the Act. However, it was found that the authority failed to fix a specific date for a personal hearing or communicate a venue/time to the assessee.
Ex-Parte Nature: The order was passed entirely ex-parte. The petitioner argued that even if they failed to file a reply initially, the law mandates a proactive offer of a personal hearing before an adverse decision is taken.
Legal Mandate: The petitioner relied on Section 75(4), which states that an opportunity for a hearing shall be granted where an adverse decision is contemplated, regardless of whether the taxpayer explicitly requested one.

The Decision

The Allahabad High Court (following precedents like Bharat Mint and Prem Traders v. State of U.P. [2025] ) set aside the order based on the following principles:

Hearing is Not Optional: The Court held that fixing a date for a personal hearing is a mandatory statutory requirement under Section 75(4). An order passed without this step is a gross violation of the principles of Natural Justice.
Fresh Notice Required: If the original date passes without a hearing, the authority must issue a fresh notice or a reminder specifically fixing a new date, time, and place. Passing an order in a vacuum is legally unsustainable.
Automatic Right: The Court clarified that a taxpayer does not need to “tick a box” or ask for a hearing; the burden lies on the Department to offer it whenever they intend to raise a tax demand.
Outcome: The impugned ex-parte order was quashed. The matter was remanded to the Assessing Officer to decide the issue afresh after providing a clear 14-day notice and a mandatory personal hearing. In favour of assessee.

Key Takeaways for Taxpayers

Silence is not Waiver: Even if you miss the deadline to file a written reply, the Department cannot skip the personal hearing stage.
The “N.A.” Trap: Check your SCN on the portal. If the column for “Date of Personal Hearing” says “N.A.” or is left blank, any subsequent order is vulnerable to being quashed by the High Court.
Check the “Additional Notices” Tab: Many of these hearing notices are hidden under the “Additional Notices and Orders” tab. Courts have consistently ruled that improper notification on the portal is a valid ground for remand.

HIGH COURT OF ALLAHABAD

Aman Traders

Deputy Commissioner^*

Saumitra Dayal Singh and Surendra Singh-I, JJ.

WRIT TAX No. 349 of 2024

MARCH 12, 2024

Suyash Agarwal for the Petitioner. Anand Agrawal, Learned counsel for the Respondent.

OREDR

1. Heard Sri Suyash Agrawal, learned counsel for the petitioner and Sri Anand Agrawal, learned counsel for the respondents.

2. Challenge has been raised to the order dated 18.08.2023, passed by respondent no.1, under Section 74 of the UPGST Act, 2017.

3. At the very outset, learned Additional Chief Standing Counsel has raised a preliminary objection as to the availability of remedy of appeal under Section 107 of the Act.

4. That objection has been met by the learned Counsel appearing for the petitioner on the strength of (violation of) Section 75(4) of the Act.

5. In similar circumstances, Writ Tax No.303 of 2024, Mahaveer Trading Company v. Deputy Commissioner, State Tax (All) has been allowed. That order dated 04.03.2024 reads as below:-

“5. It is basic to procedural law under taxing statutes that opportunity of personal hearing must be provided to an assessee before any assessment/adjudication order is passed against him. Thus, we find it strange and wholly unacceptable merely because the substantive law has changed, the revenue authorities have changed their approach and are failing to observe that mandatory requirement of procedural law. They have thus denied opportunity of hearing to the assessee.

6. Section 75(4) of the Act reads as below:

“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.”

7. Perusal of the impugned order reveals, the petitioner appeared before the competent authority on three dates. With respect to those dates, the impugned order reads as below:

(1) “जारी नोटिस के अनुपालन में दिनांक 23/9/2022 को श्री एफ०सी० चौहान (राजू चौहान) अधिवक्ता फर्म उपस्थित हुए। नोटिस का स्पष्टीकरण प्रस्तुत किया गया जो निम्न है….”

(ii) “जारी नोटिस के अनुपालन में दिनांक 07/10/2022 को पुनः श्री एफ०सी० चौहान (राजू चौहान) अधिवक्ता फर्म उपस्थित हुए। नोटिस का स्पष्टीकरण प्रस्तुत किया गया जो निम्न है…..”

(iii) “जारी नोटिस के अनुपालन में दिनांक 27/9/2022 को पुनः श्री एफ०सी० चौहान (राजू चौहान) अधिवक्ता फर्म उपस्थित हुए। नोटिस का स्पष्टीकरण प्रस्तुत किया गया जो निम्न है…..”

8. Thus, it is established on record that on all three dates, the petitioner had been called to file its reply on the points specified in the respective show-cause notice issued. The petitioner submitted its reply on each occasion. Those replies have been extracted in the impugned order. After recording the reply submitted on 27.10.2022, the adjudicating authority has chosen to deal with the merits of the replies submitted and passed a merit order.

9. It transpires from the record, neither the adjudicating authority issued any further notice to the petitioner to show cause or to participate in the oral hearing, nor he granted any opportunity of personal hearing to the petitioner.

10. On query made, the learned Additional Chief Standing Counsel fairly submits, in light of similar occurrences, noticed in other litigation, he had apprised the Commissioner, Commercial Tax. In turn, the Commissioner, Commercial Tax, Uttar Pradesh, has issued Office Memo No. 1406 dated 12.11.2024. The same has been addressed to all Additional Commissioner to be communicated to all field formations for necessary compliance. A copy of the same has been made available to this Court. It reads as below:

“1. The column in which date of personal hearing has to be mentioned, only N.A. is mentioned without mentioning any date.

2. The column in which time of personal hearing has to be mentioned, only N.A. is mentioned without mentioning time of hearing.

3. In some cases, the date of personal hearing is prior to which reply to the Show Cause Notice has to be submitted this is nonest 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.

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.

5. In all cases observed, the date of passing order either u/s 73(9)/74(9) etc. of the Act is not commensurate to the date of personal hearing. It is trite law that the date of the order has to be passed on the date of personal hearing. For eg.,the date of furnishing reply to SCN is 15.11.2023 and date of personal hearing is 17.11.2023, then the date of order has to be 17.11.2023”

11. In view of the facts noted above, 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.

12. Thus, the impugned order cannot be sustained in the eyes of law. It has been passed in gross violation of fundamental principles of natural justice. The self imposed bar of alternative remedy cannot be applied in such facts. If applied, it would be of no real use. In fact, it would be counter productive to the interest of justice. Here, it may be noted, the appeal authority does not have the authority to remand the proceedings.

6. In the present case as well the notice for filing of reply was issued on 28.06.2023 for the date 28.07.2023. No separate / other date was fixed for hearing. Yet, without passing any order on the date fixed, the impugned order has been passed on 18.08.2023 without fixing any date and without issuing any further notice for another date of hearing.

7. In view of above facts, we find that the present order has remained wholly ex-parte order that may not be sustained in view of the our earlier order passed in Mahaveer Trading Company (supra).

8. Accordingly, the writ petition is allowed in terms of the passed in Mahaveer Trading Company (supra) The impugned order dated 18.08.2023 passed by the respondent no.1 – Deputy Commissioner, Sector 4, State Tax, Muzaffar Nagar is, hereby, set-aside.

9. The matter is remitted to the respondent no.1 – Deputy Commissioner, Sector 4, State Tax, Muzaffar Nagar to pass a fresh order, in accordance with law, after affording due opportunity of hearing to the petitioner.