Arup Mallick 556981

M/L 89 IN THE HIGH COURT AT CALCUTTA
12.08.2024 CONSTITUTIONAL WRIT JURISDICTION

sb
Ct 5 APPELLATE SIDE
WPA 15853 of 2024
Arup Mallick
Versus
Commissioner, Commercial Taxes and State Tax, & Ors.
Mr. Debasish Ghosh

Mr. Partha Sen
… For the petitioner.
Mr. Anirban Ray, Ld. GP

Md. T. M. Siddiqui
Mr. Tanoy Chakraborty
Mr. Saptak Sanyal
Mr. S. Shaw
… For the State
Mr. Vipul Kundalia

Ms. Smita Das De
… For Union of India.
1. Challenging, inter alia, failure on the part of the
respondents to afford the petitioner with an
opportunity of personal hearing in terms of the
provisions contained in Section 75(4) of the
CGST/WBGST Act, 2017 (hereinafter referred to as the
“said Act”), the present writ petition has been filed.
2. The petitioner complains that although a show cause
notice was served on the petitioner on 14th August,
2023 in Form GSTDRC-01 and such notice, despite
permitting the petitioner to submit his response, did
not afford any opportunity of hearing.

2
3. Mr. Ghosh, learned advocate appearing on behalf of the
petitioner submits that the petitioner could not file his
response within the time specified inasmuch as, the
petitioner was unwell. In any event, he submits since
the statute recognizes a right for the petitioner to be
afforded with an opportunity of personal hearing when
the respondents contemplate passing of an adverse
order, failure to offer such opportunity to the petitioner
tantamounts to failure of complying with statutory
provision.
4. He submits, on such ground alone, the final order
passed by the proper officer under Section 73 of the
said Act, dated 13th December, 2023 for the tax period
July, 2017 to March, 2018 cannot be sustained.
5. Mr. Ray, learned Government Pleader appearing on
behalf of the State respondents on the other hand
would submit that despite the petitioner being afforded
with an opportunity of hearing in Form GSTDRC-01,
the petitioner chose not to file any response. He
submits that in the facts as noted hereinabove, as the
petitioner did not file any response, there was no
question on the part of the respondents, offering any
further opportunity of hearing to the petitioner. As
such, there is no irregularity in the order impugned. No
interference is called for.

3
6. Heard the learned advocates appearing for the
respective parties and considered the materials on
record. I notice in this case, the petitioner was duly
served with a show cause notice in Form GSTDRC01.
The petitioner, however, did not file any response to the
same. The petitioner alleges that during the relevant
period, the petitioner was unwell. In support thereof,
the petitioner has disclosed medical prescriptions.
7. It may be noted that provisions of Section 75(4) of the
said Act contemplates affording an opportunity of
hearing where a request is received in writing from the
person chargeable with tax, or penalty or where any
adverse decision is contemplated against such person.
Admittedly, in this case, adverse decision was
contemplated against the petitioner.
8. Having regard to the aforesaid, the order impugned
dated 13th December, 2023 passed under Section 73 of
the said Act for the tax period July, 2017 to March,
2018 stands vitiated on the ground of failure to comply
with statutory provision. There is also some
explanation on the part of the petitioner which
prevented the petitioner from filing his response.
9. In view thereof, the impugned order is set aside and
the matter is remanded back to the proper officer.

4
10. The petitioner shall be at liberty to file his response
within 15 days from date.
11. The proper officer is directed to re-adjudicate the
issues involved in the show-cause upon giving an
opportunity of personal hearing to the petitioner or his
authorized representative and to dispose of the
proceeding as expeditiously as possible, preferably
within a period of 8 weeks from the date of
communication of this order.
12. It is made clear that the petitioner has not pressed
any other challenge in the writ petition and the same
should be deemed to have been waived.
13. With the above observations and directions, the writ
petition is disposed of.
Urgent Photostat certified copy of this order, if
applied for, be made available to the parties upon
compliance of requisite formalities.
(Raja Basu Chowdhury, J.)

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M/L 89 IN THE HIGH COURT AT CALCUTTA

12.08.2024 CONSTITUTIONAL WRIT JURISDICTION

WPA 15853 of 2024

Mr. Debasish Ghosh

Mr. Anirban Ray, Ld. GP

Mr. Vipul Kundalia

1. Challenging, inter alia, failure on the part of the

respondents to afford the petitioner with an

opportunity of personal hearing in terms of the

provisions contained in Section 75(4) of the

CGST/WBGST Act, 2017 (hereinafter referred to as the

“said Act”), the present writ petition has been filed.

2. The petitioner complains that although a show cause

notice was served on the petitioner on 14th August,

2023 in Form GSTDRC-01 and such notice, despite

permitting the petitioner to submit his response, did

not afford any opportunity of hearing.

3. Mr. Ghosh, learned advocate appearing on behalf of the

petitioner submits that the petitioner could not file his

response within the time specified inasmuch as, the

petitioner was unwell. In any event, he submits since

the statute recognizes a right for the petitioner to be

afforded with an opportunity of personal hearing when

the respondents contemplate passing of an adverse

order, failure to offer such opportunity to the petitioner

tantamounts to failure of complying with statutory

4. He submits, on such ground alone, the final order

passed by the proper officer under Section 73 of the

July, 2017 to March, 2018 cannot be sustained.

5. Mr. Ray, learned Government Pleader appearing on

behalf of the State respondents on the other hand

would submit that despite the petitioner being afforded

with an opportunity of hearing in Form GSTDRC-01,

the petitioner chose not to file any response. He

submits that in the facts as noted hereinabove, as the

petitioner did not file any response, there was no

question on the part of the respondents, offering any

further opportunity of hearing to the petitioner. As

such, there is no irregularity in the order impugned. No

interference is called for.

6. Heard the learned advocates appearing for the

respective parties and considered the materials on

record. I notice in this case, the petitioner was duly

served with a show cause notice in Form GSTDRC01.

The petitioner, however, did not file any response to the

same. The petitioner alleges that during the relevant

period, the petitioner was unwell. In support thereof,

the petitioner has disclosed medical prescriptions.

7. It may be noted that provisions of Section 75(4) of the

said Act contemplates affording an opportunity of

hearing where a request is received in writing from the

person chargeable with tax, or penalty or where any

adverse decision is contemplated against such person.

Admittedly, in this case, adverse decision was

contemplated against the petitioner.

8. Having regard to the aforesaid, the order impugned

dated 13th December, 2023 passed under Section 73 of

2018 stands vitiated on the ground of failure to comply

with statutory provision. There is also some

explanation on the part of the petitioner which