The Gujarat High Court quashed the Service Tax Demand as no opportunity of personal hearing was given by the concerned authority before passing the order.
The writ applicant, Aditya R Parikh seeks to challenge the validity of the recovery notice dated 17th December, 2020 issued in Form GST DRC-16, inter alia, attachment of the factory premise of the writ applicant under Section 79 of the CGST Act, 2017. The order of attachment appears to be the consequences of the order dated 21st October, 2020 uploaded on the GST Portal on 24th November, 2020.
The subject matter of challenge is to the order passed by the Asst. Commissioner of State Tax ordered the liability of the writ applicant to pay a particular amount towards service tax with penalty came to be fixed.
It appeared from the materials on record that the order came to be passed without giving any opportunity of hearing to the writ applicant.
The division bench of Justice J.B.Pardiwala and Justice Ilesh J. Vora found that no opportunity of personal hearing was given to the writ applicant by the concerned authority before passing the impugned order. Although a specific request in this regard was made, yet, the impugned order came to be passed without affording any opportunity of hearing.
The court observed that Section 75(4) makes it abundantly clear that an opportunity of hearing has to be given, more particularly, in those cases where a request is received in writing from the person chargeable with tax or penalty and without any adverse decision is contemplated against such person.
Therefore, the court held that the entire matter should be remitted to the respondent authority for fresh consideration. The respondent has been directed to issue a notice to the writ applicant, fixing a particular date for hearing, and on that particular date, that may be fixed, the writ applicant himself or through his legal representative shall appear before the respondent authority and make his submissions.
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