LI Network
Published on: October 13, 2023 at 18:03 IST
In a recent judgment, the Jharkhand High Court dismissed a writ petition brought by a proprietorship firm involved in civil contract work, challenging an Order-in-Original (OIO) issued by the Additional Commissioner of Central GST & CX, Ranchi.
The court emphasized that the Assessee had been granted ample opportunities to appear before the adjudicating authority.
It was highlighted that letters for personal hearings were dispatched to the Assessee’s address as provided in their GST registration, as well as through email. However, these efforts were in vain as the letters were returned undelivered, and the Assessee did not respond to the emails.
The division bench comprising Justices Rongon Mukhopadhyay and Deepak Roshan observed, “It is further evident that the Assessee was given ample opportunity to appear before the adjudicating authority but he failed to do so. The letters of personal hearing were issued to him on the address “M/s Rajeev Kumar, Lukiya Petarwar, Bokaro Steel City, 827001” provided by the petitioner-assessee in their GST registration but the letters were returned undelivered.
It further transpires that the letters were also sent to the assessee through e-mail ID which was available to the department but the Assessee did not respond to the said letters.
“Thus, the contention of the Assessee that the principle of natural justice has not been complied is misplaced and misconceived and without any basis. As a matter of fact, in para-9 and 10 of the impugned Order-in-Original, the adjudicating authority has clearly stated giving details of opportunity provided to the Assessee. As such, the contention of non-fulfillment of natural justice is not sustainable in the background of this case,” the bench added.
In this case, the petitioner, a proprietorship firm engaged in civil contract work, provided construction services to government offices in Jharkhand and Bihar during 2016-17.
The petitioner argued that no service tax was applicable under Sl. No.13 of notification No.25/2012-ST dated 20.06.2012. In September 2021, the petitioner was informed by the office of respondent No.2, the Additional Commissioner of Central GST & CX, about an ongoing investigation regarding alleged non-registration under service tax and non-payment of service tax for the Financial Year 2016-17.
Due to COVID restrictions, the petitioner submitted written responses and supporting documents through email in reply to the notices issued.
Despite the petitioner’s timely response, a demand-cum-show cause notice was issued, followed by a date for a personal hearing on 04.01.2023. Unfortunately, the petitioner missed the hearing date as they did not check their email regularly. Consequently, the impugned Order in Original (OIO) was passed against the petitioner.
The applicant sought the following reliefs:
1. To overturn the Order-in-Original No.20/S.Tax/ADC/RAN/2023 passed by the Additional Commissioner, GST and CX, Ranchi, due to violation of natural justice and disregarding the petitioner’s response without consideration.
2. To annul the demand-cum-notice to show cause dated 24.09.2021 issued by Respondent No.2, regarding the imposition of service tax, interest, and penalties for the financial year 2016-17.
3. To instruct the adjudicating authority to issue a fresh order considering the petitioner’s submissions and documents sent via email on 13.09.2021.
After careful consideration of the arguments presented by both parties and reviewing the statements made in their respective affidavits and the documents attached therein, as well as examining the contested Order-in-Original, the court noted that the petitioner had not responded to the “Show Cause Notice” (SCN).
The court noted that the date for a personal hearing was scheduled four times, namely, on 27.10.2022, 25.11.2022, 07.12.2022, and 04.01.2023, but the petitioner failed to attend on any of these occasions.
Additionally, the court highlighted that the petitioner referred to Annexure-2, 2/1, and 2/2, claiming to have replied to the notice. However, upon scrutiny, it became apparent that this reply was provided during the inquiry stage and not in response to the SCN.
The court clarified that the response sent by the petitioner, which was directed to the Superintendent, Range-1, Div-II, Bokaro, pertained to pre-SCN queries made by the Range Officer. The petitioner did not reply to the actual SCN itself.
Addressing paragraphs 9 and 10 of the disputed Order-in-Original, the court emphasized that the adjudicating authority had thoroughly documented the opportunities given to the Assessee. Therefore, the argument of non-compliance with natural justice lacked merit in this case.
The court concluded, “Accordingly, we are of the considered opinion that no error has been committed by the adjudicating authority in passing the impugned Order-in-Original, inasmuch as, enough opportunities were provided to the petitioner by issuing SCN and also fixing the date of personal hearing for four times; but the petitioner did not respond to either of them.”
“Having regard to the aforesaid discussions and admitted position with regard to non-submission of reply to the SCN, we failed to appreciate the contention of the petitioner that the principle of natural justice has not been complied in the instant case. Since there is efficacious alternative remedy provided in the Act itself, we hold that the instant writ application is not maintainable,” the court concluded, subsequently dismissing the application.