Partly allowed

Sri. Rakesh B Patel v. the Additional Commissioner of Central Tax

Karnataka HC7 Apr 2022WP/6768/2022

Case brief

AI extract

What is this about?

Petitioner challenged a tax adjudication order citing denial of personal hearing despite multiple notices. Court allowed petition in part, quashed the order, and restored proceedings for reconsideration while fixing a date for personal appearance without further adjournments.

What did the court decide?

Impugned order quashed; proceedings restored for reconsideration; petitioner directed to appear without further adjournment.

Sri. Rakesh B Patel Vs the Additional… — Constitutional and Fundamental Rights | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 07^TH DAY OF APRIL 2022

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BEFORE

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THE HON’BLE MR. JUSTICE B. M. SHYAM PRASAD

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WRIT PETITION NO.6768/2022 (T-RES)

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BETWEEN :

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SRI. RAKESH B PATEL S/O LATE SRI BHUPENDRA R PATEL AGED ABOUT 61 YEARS NO 2A, MARIA NIVAS NO 1/ BORE BANK ROAD, BENSON TOWN BENGALURU 560046

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... PETITIONER

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(BY SRI. ANNAMALAI S, ADVOCATE)

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AND :

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THE ADDITIONAL COMMISSIONER OF CENTRAL TAX OFFICE OF THE PRINCIPAL COMMISSIONER OF CENTRAL TAX BENGALURU-NORTH COMMISSIONERATE HMT BHAVAN, GANGANAGAR BENGALURU 560032

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... RESPONDENT

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(BY SRI. JEEVAN J. NEERALGI, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER-IN ORIGINAL PASSED BY THE RESPONDENT VIDE NO.61/ST/2021-

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22 DATED 19.01.2022 HEREIN MARKED AS ANNEXURE-A.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN B GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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The petitioner has impugned the Order-in-Original dated 19.01.2022 (Annexure-A) by the respondent, and one of the questions that the petitioner canvasses, apart from the question of jurisdiction, is the question of due opportunity.

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Sri. Annamalai S, learned counsel for the petitioner, submits that though the petitioner has filed his response/reply, the petitioner is not given the opportunity of personal hearing. The petitioner’s authorized representative sought for adjournments bonafide but has thereafter not received notice of personal hearing dated 10.11.2021 and 09.12.2021.

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The learned counsel submits that if the petitioner would have been extended an opportunity of personal hearing, he could have persuaded the respondent to consider the question of jurisdiction.

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Sri. Jeevan J. Neeralgi, learned counsel for the respondent submits that the impugned Order-inOriginal demonstrates that repeated notices of personal hearing were issued between the months of September 2021 and December 2021 and the petitioner who has not availed such opportunity cannot complain of denial of personal hearing.

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As regards ‘ the personal hearing ’, the impugned Order-in-Original reads as under:

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“ The Noticee was given opportunities to appear for personal hearing to defend their case and the communications to appear for personal hearing were forwarded to the Assessee vide letters dated 13/9/2021, 04/10/2021, 03/11/2021 and

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01.12.2021 informing the date of personal hearing scheduled on 20/09/2021, 14/10/2021, 10/11/2021 and 19/12/2021 respectively and the said letters were forwarded through SPAD. This office received email dated 13.10.2021 and 15.10.2021 from Shri. Somesh NN (email ID [email protected]), who claimed to be the authorized representative of the noticee, seeking adjournment of the personal hearing. Thereafter, personal hearing scheduled on 10.11.2021 and 09.12.2021 were communicated to the noticee by SPAD and also via email to email ID [email protected]. But, no response was received from the noticee.

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Thus, the noticee was also given sufficient time and opportunities to represent their case. Whereas, the noticee has filed to appear for personal hearings scheduled on four different dates. However, the noticee has filed reply to the notice. Hence, I am proceeding to decide the case based on the reply filed by the noticee.”

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It follows from the above that the petitioner was served with notice of hearing on couple of occasions and on those occasions his representative has sought for

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adjournment. The final notice of personal hearing, even according to the respondent, is on 01.12.2021 for personal hearing on 09.12.2021 and there is nothing on record to indicate that there was any response from the petitioner. The respondent has opined that the petitioner though given sufficient time and opportunity, has failed to avail personal hearing.

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There could be some debate on whether the petitioner has been diligent or not. But, because the Order-in-Original is premised inter alia on the ground that the petitioner has not availed the sufficient time and opportunity extended and because the petitioner pleads lack of knowledge of the dates of personal hearing and seeks to raise questions of jurisdiction, this Court is of the considered view that the petitioner must have another opportunity before the respondent but on terms. This would ensure that the lack of opportunity , perhaps a bogey, is not raised to the defeat the

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substantive merits of the adjudication. Hence, the following:

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ORDER

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a. The petition is allowed in part. The impugned Order-in-Original dated 19.01.2022 (Annexure-A) is quashed restoring the proceedings to the respondent for reconsideration.

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b. The petitioner, who shall be at liberty to file additional plea and documents, shall appear before the respondent – the Additional Commissioner of Central Tax, Bengaluru, without notice of personal hearing on 28.04.2022.

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c. If the petitioner, despite this opportunity seeks adjournments repeatedly, shall waive his right to contend that there was denial of opportunity.

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d. The respondent shall dispose of the

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proceedings within a period of six [6] weeks from the date of first appearance as aforesaid.

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Sd/- JUDGE

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Sri. Rakesh B Patel v. the Additional Commissioner of Central Tax

Case brief

What is this about?

What did the court decide?

Sri. Rakesh B Patel v. the Additional Commissioner of Central Tax

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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