Facts of the Case

The petitioner, M/S Dev Builder, approached the High Court of Judicature at Allahabad by way of Writ Tax No. 786 of 2023, invoking writ jurisdiction against an order dated 20.01.2023 passed by the Commissioner, Central GST and Central Excise, Agra. According to the petitioner, the impugned order had been passed ex-parte, without affording it a proper opportunity of hearing. Learned counsel appearing for the Revenue, however, submitted that notices had in fact been issued to the petitioner prior to the passing of the order. On a reading of the averments made in the writ petition, the Court found that a genuine dispute existed between the parties as to whether notice had actually been served on the petitioner before the Commissioner passed the order impugned in the petition.

Issues Involved

  1. Whether the order dated 20.01.2023 passed by the Commissioner, Central GST and Central Excise, Agra, was passed ex-parte, without service of notice on the petitioner.
  2. Whether, given the disputed factual position on service of notice, the appropriate course was to set aside the impugned order and remit the matter for issuance of a fresh notice and fresh adjudication.

Petitioner's Arguments

  • The order dated 20.01.2023 passed by the Commissioner was an ex-parte order.
  • No notice had, in fact, been served on the petitioner before the order was passed, resulting in denial of an effective opportunity of hearing.
  • In view of this, the impugned order deserved to be set aside and the matter remitted for fresh adjudication after due service of notice.

Respondent's Arguments

  • Learned counsel for the Revenue submitted that notices had, in fact, been issued to the petitioner prior to the passing of the impugned order.
  • The Revenue did not press for retention of the impugned order and joined the petitioner in proposing that it be set aside, with liberty to issue a fresh notice and pass a fresh order thereafter.

Court Order / Findings

  • The Division Bench, comprising the Chief Justice's Court, noted that a dispute existed between the parties regarding service of notice upon the petitioner prior to the order dated 20.01.2023.
  • Both counsel jointly proposed that the impugned order be set aside, with liberty granted to the respondents to issue a fresh notice in accordance with law.
  • The petitioner was to be permitted to respond to the fresh notice within the time frame fixed therein, following which a fresh order was to be passed.
  • The Court disposed of the writ petition by requiring the respondents to issue a fresh notice to the petitioner in accordance with law and thereafter to proceed to pass orders strictly in accordance with law.
  • No independent finding was recorded by the Court on the disputed question of service; the disposal proceeded entirely on the joint proposal made by both sides.

Important Clarification

  • This is a short, consent-based procedural order and does not lay down any substantive principle of GST law.
  • The Court did not adjudicate the factual dispute as to whether notice was actually served on the petitioner; it left that question open by directing issuance of a fresh notice and a fresh opportunity of hearing.
  • The order simply illustrates that where the Allahabad High Court is confronted with a disputed question of fact regarding service of notice in GST adjudication proceedings, and the parties themselves propose a workable course, it will readily dispose of the writ by directing fresh notice and fresh orders rather than deciding the factual controversy in writ jurisdiction.
  • No ratio on limitation, quantum, classification, or interpretation of any provision of the CGST Act emerges from this order; it is confined strictly to its own facts and procedural posture.

Sections Involved

  • Central Goods and Services Tax Act, 2017 – the impugned order arose out of adjudication proceedings conducted by the Commissioner, Central GST and Central Excise, Agra; the order itself does not discuss or rely upon any specific charging or procedural section.
  • Principles of Natural Justice – the core controversy concerned whether the petitioner was afforded a fair opportunity of hearing through proper service of notice before the adjudicating authority passed its order.

Decision – In Favour of

The writ petition was disposed of with directions, by consent of both parties, rather than on a decision on merits. The impugned ex-parte order dated 20.01.2023 was set aside and the Department was directed to issue a fresh notice, giving the petitioner a fresh opportunity to respond before a fresh order is passed. This may be described as disposed of with directions, procedurally in favour of the Assessee to the extent the ex-parte order stood set aside, while fully preserving the Department's liberty to proceed afresh strictly in accordance with law.

Related Case Laws

  • Judgments dealing with ex-parte GST adjudication orders set aside for want of proper service of notice, where courts have remitted matters for fresh notice and hearing.
  • Decisions of the Allahabad High Court on disputed questions of fact regarding service of notice under the CGST Act, 2017, being left open for fresh proceedings rather than being decided in writ jurisdiction.
  • Orders illustrating the principle of natural justice requiring proper service of show cause notice before an adverse GST order can be sustained.

Case Details

  • Court: High Court of Judicature at Allahabad (Chief Justice's Court)
  • Case No.: Writ Tax No. 786 of 2023
  • Neutral Citation: 2023:AHC:200292-DB
  • Parties: M/S Dev Builder vs Commissioner, Central GST and Central Excise
  • Coram: Hon'ble Pritinker Diwaker, Chief Justice; Hon'ble Ashutosh Srivastava, J.
  • Counsel for Petitioner: Aditya Pandey
  • Counsel for Respondent: Gaurav Mahajan
  • Impugned Order Date: 20.01.2023 (Commissioner, Central GST and Central Excise, Agra)
  • Order Date: 17.10.2023

Link to Download the Order

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