Allowed

M/S Kca Infrastructure through Its Proprietor Sh Sonu Ahuja v. Learned Commissioner Adjudication Central Tax Cgst Delhi East

Delhi HC22 Apr 2024W.P.(C)/3884/2024

Case brief

AI extract

What is this about?

This judgment sets aside an ex-parte order passed by the Adjudicating Authority in CGST proceedings. The court found that the petitioner was denied a valid opportunity of hearing due to non-receipt of notice and a clerical error in the impugned order, violating principles of natural justice. The matter was remitted for re-adjudication. No merits were considered.

What did the court decide?

Impugned order dated 28.12.2023 set aside; matter remitted to Proper Officer for re-adjudication; petitioner directed to appear on 30.04.2024.

M/S Kca Infrastructure through Its Proprietor Sh Sonu… — Service and Employment | Delhi HC (2024)

¶1

$~55

¶2

*** IN THE HIGH COURT OF DELHI AT NEW DELHI**

¶3

% Date of decision: 22.04.2024

¶4

- W.P.(C) 3884/2024 & CM APPL. 15998/2024

¶5

M/S KCA INFRASTRUCTURE THROUGH ITS PROPRIETOR SH SONU AHUJA ..... Petitioner

¶6

versus

¶7

LEARNED COMMISSIONER ADJUDICATION CENTRAL TAX CGST DELHI EAST ..... Respondent

¶8

Advocates who appeared in this case:

¶9

For the Petitioner: Mr. Gaurav Gupta, Advocate. For the Respondent: Mr. Arun Khatri, SSC with Ms. Shelly Dixit & Mr. Sahil Khurana, Department of CGST.

¶10

CORAM:-

¶11

HON’BLE MR. JUSTICE SANJEEV SACHDEVA HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV

¶12

JUDGMENT

¶13

SANJEEV SACHDEVA, J. (ORAL)

¶14

Petitioner impugns order dated 28.12.2023 whereby the Show Cause Notice dated 24.10.2018 and 14.02.2020 have been disposed of.

¶15

A short counter affidavit filed by the respondent vide diary No. 1148301/2024 on 15.04.2024 is not on record. However, the original duly attested has been produced in Court. Same is taken on record.

¶16

W.P. (C) 3884/2024

¶17

Page 1 of 5

¶18

Signature Not Verified Digitally Signed By:RASHIM KAPOOR Signing Da te:2 3.04.2024 17:02:51

¶19

Learned counsel for the petitioner submits that no effective date providing an opportunity of personal hearing was granted to the Petitioner. He submits that no notice of hearing was received for personal hearing on 03.11.2020 and petitioner received a notice for hearing on 04.01.2021.

¶20

As per petitioner, on 04.01.2021, Petitioner along with his representative had appeared and made detailed submissions before the Proper Officer and thereafter sought time to file written submissions, which were subsequently filed. However, no order was received and Petitioner got to know that the concerned Officer had changed.

¶21

Thereafter, no notice of hearing was received. A notice was received on 07.11.2023 fixing a date for hearing on 07.11.2023 and on 22.11.2023. He submits that since no notice was received before 07.11.2023, no one could appear on behalf of the Petitioner for the said hearing and for 22.11.2023, a request was made for deferment because of the fact that the counsel was not available.

¶22

Thereafter, a notice dated 11.12.2023 was received fixing a date of hearing on 18.11.2023. He submits that on 18.12.2023, a communication was sent to the Respondent that the date appeared to be incorrect. However, no further communication has been received but the impugned order records that the hearing was held on 18.12.2023 which is contradicted by the letter dated 11.12.2023.

¶23

W.P. (C) 3884/2024

¶24

Page 2 of 5

¶25

Signature Not Verified Digitally Signed By:RASHIM KAPOOR Signing Da te:2 3.04.2024 17:02:51

¶26

The counter affidavit confirms the submissions of the counsel for the petitioner with regard to the notices having been sent for the various dates. The counter affidavit further states that a sixth notice of personal hearing was issued on 11.12.2023 for a hearing on 18.12.2023, but on account of a clerical mistake a date 18.11.2023 was printed on the notice of hearing.

¶27

On a query raised to the learned counsel for the respondent as to whether there is any office noting on the file of the case fixing the date of 18.12.2023, learned counsel respondent submits that no such office noting has been brought to his notice by the department or provided to him. He submits that the copy of notice dated 11.12.2023 annexed herein as “Annexure F” is the only notice evidencing the fixing of the date of hearing as 18.12.2023.

¶28

Perusal of notice dated 11.12.2023 shows that the date of hearing mentioned therein is 18.11.2023. Said notice dated 11.12.2023 does not fix the hearing on 18.12.2023 and the same is conceded by the respondents who state that on account of a typographical error the date mentioned is 18.11.2023.

¶29

The impugned order dated 28.12.2023 records that a hearing was fixed on 18.12.2023 and since petitioner failed to appear, the case was decided ex-parte. Said finding is clearly contradicted from the record produced by the respondents themselves. There is no record of

¶30

W.P. (C) 3884/2024

¶31

Page 3 of 5

¶32

Signature Not Verified Digitally Signed By:RASHIM KAPOOR Signing Da te:2 3.04.2024 17:02:51

¶33

the case hearing being fixed for 18.12.2023 and no hearing notice sent to the petitioner for the hearing of 18.12.2023.

¶34

Reliance has been placed by the learned counsel for the petitioner on the judgment in the case of N.K. Prasada Vs. Government of India & Ors. 2004 (6) SCC 299 to contend that the principles of natural justice cannot be put in a straight jacket formula and in a given case the party would be required to show prejudice caused by non-compliance of the principles of natural justice.

¶35

Said reliance is misplaced for the reason that in the said case, the Supreme Court has held that once a party had proper notice and chose not to appear, then said party cannot be permitted to contend that he was not given a fair opportunity of hearing.

¶36

In the instant case, respondents decided to give petitioner an opportunity of hearing and accordingly, as per the respondents, fixed a date of 18.12.2023 for a personal appearance. Admittedly no notice for the said date was either sent or delivered to the petitioner. Consequently, petitioner was prejudiced, inasmuch as, petitioner could not be present at the time of personal hearing and the case was decided in his absence adversely. Consequently, we are of the view that the impugned order dated 28.12.2023 cannot be sustained and is liable to be set aside and the show cause notice restored on the file of the Adjudicating Authority.

¶37

W.P. (C) 3884/2024

¶38

Page 4 of 5

¶39

Signature Not Verified Digitally Signed By:RASHIM KAPOOR Signing Da te:2 3.04.2024 17:02:51

¶40

In view of the above, the impugned order dated 28.12.2023 is set aside. The matter is remitted to the proper Officer to re-adjudicate the show cause notice in accordance with law. Petition is disposed of in the above terms.

¶41

With the consent of parties, it is directed that petitioner shall appear before the proper Officer on 30.04.2024 at 3.00 pm. It is clarified that this Court has neither considered nor commented on the merits of the contention of either party. All rights and contentions of the parties are reserved.

¶42

SANJEEV SACHDEVA, J

¶43

PURUSHAINDRA KUMAR KAURAV, J

¶44

APRIL 22, 2024/ sk

¶45

W.P. (C) 3884/2024

¶46

Page 5 of 5

¶47

Signature Not Verified Digitally Signed By:RASHIM KAPOOR Signing Da te:2 3.04.2024 17:02:51

M/S Kca Infrastructure through Its Proprietor Sh Sonu Ahuja v. Learned Commissioner Adjudication Central Tax Cgst Delhi East

Case brief

What is this about?

What did the court decide?

M/S Kca Infrastructure through Its Proprietor Sh Sonu Ahuja v. Learned Commissioner Adjudication Central Tax Cgst Delhi East

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Qaisar Sultana (Sr. Citizen) and Ors. Vs Municipal Corporation of Delhi and Ors.

Dinesh Yadav & Anr. Vs Registrar, Cooperative Societies & Ors.

Vlcc Health Care Limited Vs Income Tax Officer & Ors.

Preeti Singh Vs Union of India

Abhilasha Teacher Training School Vs National Council for Teacher Education & Anr.

Jyoti Deep Export Pvt. Ltd. Vs Union of India and Ors.

M/S B.L. Construction Company Vs Sukhdev and Ors.

D N Gandhi Vs Union of India & Anr.

Dr Syeda Saiyidain Hameda & Ors. Vs Union of India & Ors.

M/S Nbcc (India) Limited (Formerly Known as National Buildings Construction Corporation Ltd.) Vs M/S Nangia Construction (I) Pvt. Ltd.

Glenmark Pharmaceuticals Ltd. Vs Sun Pharma Laboratories Ltd.

Supertech Engineers Vs Commissioner of Central Tax (Delhi West) and Anr.

Dinesh Kumar Varma Vs Sales Tax Officer Class II Avato Ward 93 Zone 8 Delhi

Kalpana Cables Products Pvt. Ltd. Vs the Commissioner, Department of Trades and Taxes & Anr.