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Demand order passed without giving opportunity of being

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Demand order passed without giving opportunity of being

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  1. Demand order passed without giving opportunity of being heard is liable to be set aside

  2. Brief Facts of the case • The Petitioner (Ocean Sparkle Limited) has received the Assessment Order (Ref. No. ZD370321001535W dated 17th March, 2021) from Assessing Authority (“The Respondent”) regarding the Tax demand and the penalty for the period of July 2017 to March 2018. • The Respondent issued a show cause notice to the petitioner under section 73 of CGST Act, 2017 read with Rule 142(1) of CGST Rules, 2017 on 20th January, 2021. • However, the petitioner failed to respond to such Show Cause Notice. However, written objections were filed on 18th March, 2021. • The Petitioner contended that such demand order is liable to be set aside on the ground of non-compliance of mandatory provisions of Section 75(4) of CGST Act 2017.

  3.  Relevant Legal Extract • Chapter XV of CGST Act, 2017 deals with “Demand & Recovery”. • Section 73 deals with “Determination of tax not paid or short paid or erroneously refunded o/r input tax credit wrongly availed or utilized for any reason other than fraud or any willful misstatement or suppression of facts”. • Section 74 deals with “Determination of tax not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilized for any reason other than fraud or any willful misstatement or suppression of facts”. • Section 75 deals with “General provisions relating to determination of tax”. • Section 75 (4) is relevant for the matter under discussion and relevant extract of which reiterated below for ready references

  4. Contentions of the Petitioner • The Petitioner contended following points: • The petitioner could not file an objection to the show cause notice within the stipulated time period due to various reasons. • However, a written objection was filed on 18th March, 2021. • The Respondent have not followed the mandatory provisions of GST law. Therefore, impugned order is liable to be set aside

  5.  Contentions of Respondent • The Respondent contended that: • The petitioner has failed to file response to show cause notice dated 20th January, 2021. Therefore, now it is not open for the petitioner to raise any objection against impugned order. • The respondent has passed the impugned order only after granting the full fledged opportunity to the petitioner. • Further, in case of any objection, the petitioner has alternate remedy available under Section 107 of CGST Act to file an appeal before Appellate Authority. Therefore, writ petitioner before Hon’ble High Court is not maintainable.

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