The Madras High Court in the case Asia (Chennai) Engineering Company Private Limited Versus the Assistant Commissioner observed and has held that the GST Department should consider a reply to a show cause notice issued even if it is sent by the assessee through the post and not the portal.
The Single bench comprising of Justice M. Nirmal Kumar, while rejecting the objection of the department that the postal/physical reply to them shall not be considered observed and has directed the department to give an opportunity for personal hearing to the petitioner, hearing the objections to peruse the documents submitted and the explanations.
In the present case, the petitioner contended that the show cause notice was issued to the petitioner for revoking the erroneous refund claim. A reply was sent by the petitioner which has been received by the respondent. Thus, it could be seen through the tracking of the postal department as well as the letter from the postal department. It had been received by the petitioner that the adjudication order passed by the respondent, wherein it is stated that, as a part of the principles of natural justice, a personal hearing was offered to the petitioner, and since no one appeared, the court passed an adjudication order.
It was contended by the petitioner that he had sent a hard copy of the reply to the show cause notice, which was not considered and as per Section 75(4) of the Central Goods and Service Tax Act, 2017, it is clearly been held that “an opportunity of hearing shall only be granted where a request is received in writing from the person chargeable with penalty or tax, or where any adverse decision is contemplated against the such person”. It contended that when the adjudication officer, on completion of adjudication, decides to impose a penalty or any penalty imposed against the assessee, naturally, an opportunity is given. No opportunity was given to the petitioner. It was submitted by the petitioner that the personal hearing notice was not sent to the portal register of the respondents beyond the period of thirty days on January 8, 2022, by postal.
It had been contended by the department that as per Section 169, the circumstances under which the notice has to be served are stated in which one of the modes is through email. On the portal, the personal details have been posted by sending a communication to the email address provided at the time of registration of the assessee/dealers and by making the information available on a common portal. Likewise, notices have been sent through email.
The screenshot has been produced by the petitioner of the details available in the portal on 20.08.2022 wherein it shows a show cause notice under Section 73 and 74 and GST DRC-01 was initiated and issued on 30.11.2021 and the due date to reply is on 30.12.2021, while confirming the refusal of personal hearing details.
It was also held by the court that the only objection of the department is that the postal or physical reply was not considered since it was not sent through a portal. However, the petitioner deserves a personal hearing so that his objections can be heard.
Further, the court directed the respondent to fix the personal hearing date for the petitioner, give him an opportunity to receive any documents if produced, and thereafter proceed with the show cause notices.
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