Order Date – 22 August 2023

Parties: M/S B L Pahariya Medical Store Vs State of U.P. and Another

Facts – 

• The Petitioner, M/S B L Pahariya Medical Store, was served with a notice on 12.07.2022 seeking his reply within 15 days.
• On 21.03.2023 the Deputy Commissioner, State Tax, Sector-1, Karvi, passed an order for the tax period July 2017 to March 2018, whereby demand in excess to Rs. 26 Lacs without giving opportunity of hearing.

Issue – 

• Whether the assessment order passed without affording opportunity of hearing is valid?

Order – 

• The Divisional Bench of Hon’ble High Court relied on the view taken by the coordinate bench in Bharat Mint & Allied Chemicals, wherein it was held that Once it has been laid down by way of a principle of law that a person/assessee is not required to request for "opportunity of personal hearing" and it remained mandatory upon the Assessing Authority to afford such opportunity before passing an adverse order, the fact that the petitioner may have signified 'No' in the column meant to mark the assessee's choice to avail personal hearing, would bear no legal consequence.
• In this case the impugned order itself has been passed on 21.03.2023, while reply to the show-cause notice had been entertained on 30.12.2022. The stand of the assessee may remain unclear unless minimal opportunity of hearing is first granted. Only thereafter, the explanation furnished may be rejected and demand created.
• Not only such opportunity would ensure observance of rules of natural of justice but it would allow the authority to pass appropriate and reasoned order as may serve the interest of justice and allow a better appreciation to arise at the next/appeal stage, if required.
• Accordingly the writ petition is allowed, the impugned order is set aside and the matter is remanded back to issue a fresh notice to the petitioner.