In D.B. Civil W.P. No.17550/2022-RAJ HC- If sufficient cause is shown by person chargeable with tax, then as per Sec.75(5) of Rajasthan GST Act, Officer can adjourn hearing but such adjournment is not to be granted for more than 3 times: Rajasthan HC
Justices Manindra Mohan Shrivastava & Vinod Kumar [07-12-2022]

Read Order: Tanushree Logistics Private Limited v. State Of Rajasthan And Ors 

Tulip Kanth

Jaipur, January 31, 2023: While highlighting the recent judicial pronouncements of the Supreme Court which settle the legal position with regard to maintainability of the writ petitions under Article 226 of the Constitution by the High Court against the assessment order, limiting the scope of interference by the writ court in cases where remedy of statutory appeal is available, the Jaipur Bench of the Rajasthan High Court has dismissed certain writ petitions leaving it open for the petitioner to avail alternative remedy of appeal.

The Division Bench of Justice Manindra Mohan Shrivastava and Justice Vinod Kumar Bharwani was considering an objection raised by the respondents with regard to maintainability of the writ petitions, seeking to challenge an order of assessment under Section 50 & 74 of the Rajasthan Goods and Service Tax Act, 2017 on the ground that these writ petitions had been filed against the order of assessment though the petitioner had an efficacious and alternative statutory remedy of appeal u/s 107.

It was the petitioner’s case that in all the cases the respondents had acted in flagrant violation of provisions contained under Section 74 inasmuch as the mandatory requirement of giving summary of grounds in form DRC-01 was not supplied along with show cause notice and, therefore, there was apparent violation of Rule 142 of Rajasthan Goods and Service Tax Rules, 2017. 

It was also submitted that various documents collected by the respondents, which included survey report and statements seven in number, which formed the basis for impugned order of assessment were never submitted to the petitioner. It was the petitioner’s case that as provided u/s 75(5), he was entitled to three opportunities but those opportunities were never granted to him and all of a sudden, without any reply on record, the impugned order was passed.

The Bench was of the view that no case of violation of principles of natural justice was made out by the petitioner as a detailed inquiry was made against the petitioner and then summons u/s 70 were issued on several occasions and opportunity was granted to provide information. 

Furthermore, after going through the contents of show cause notices, the Bench found the same to be detailed giving the grounds including the provisions of law under which the tax was proposed to be imposed on the petitioner. 

“The respondents have stated in the reply that during period under consideration, due to technical problems, DRC-01 form could not be attached but full care and caution was taken that summary of grounds are clearly stated in the show cause notice so that the petitioner--assessee has full notice and knowledge of the material particulars and the grounds on which the action is proposed to be taken against him. Therefore, argument in this regard as raised by the petitioner is sans substratum”, the Bench stated.

It was also noticed by the High Court that the petitioner requested for adjournments on July 14, 2022, August 1,2022 and then on September 21,2022. The petitioner did not avail the opportunity granted to him more than once and also did not ask for disclosure of any particular record, report or statement but avoided to file any reply.

“The argument based on right to get three adjournments as a matter of course, is based on provisions contained under Section 75(5) of the Act. The said provision provides that proper officer shall, if sufficient cause is shown by the person chargeable with tax, grant time to the said person and adjourn the hearing for reasons to be recorded in writing provided that no such adjournment shall be granted for more than three times to a person during the proceedings’, the Bench held while noting that the petitioner was, in fact, granted three adjournments and when he failed to submit any reply, the order was passed against him. 

While referring to the judgments of the Supreme Court in Assistant Commissioner of State Tax and Others Versus Commercial Steel Limited and State of Madhya Pradesh and Another Versus Commercial Engineers and Body Building Company Limited, the Bench said, “The law declared in the aforesaid decisions, particularly in cases where challenge arises out of an order of assessment in the matter of imposition of tax, leaves no manner of doubt that except in limited circumstances as dealt with hereinabove, the writ petitions would not be maintainable.”

Thus, the objection of maintainability of the writ petitions was sustained and the writ petitions were held to be not maintainable as the petitioner had an efficacious alternative statutory remedy of filing of an appeal.