28.10.2022: One More Case Where Order Has Been Passed Without Application Of Mind – Order Without Considering The Reply Set Aside – Bombay High Court

The Hon’ble High Court of Bombay vide its order dated 10th October 2022 in the matter of Lakha Ram Vs. The Union of India and Anr. in Writ Petition No. – 12063 OF 2022, set aside the order passed by the revenue without considering the reply to the show cause notice filed by the assessee.  Moreover, it was observed in the order that no reply has been filed by the assessee.

The Petitioner filed the writ petition before the Hon’ble Court challenging the impugned order dated 30th June 2021 on the ground that the observation made in the said order that the petitioner has not filed reply to the charges made in the show cause notice is erroneous, as the petitioner duly filed the reply dated 9th December 2019.

Facts: –

  • That prior to the issuance of the show cause notice the petitioner received a letter dated 11th October 2019 from the respondent authority for verification of service tax payment, to which the petitioner filed the reply vide letter dated 9th December 2019, with relevant documents.
  • Subsequent to that, the petitioner received a show cause notice dated 30th December 2020 but strangely signed on 24th December 2020, to which the petitioner duly responded, reiterating the contents of letter dated 09th December, 2019, vide its reply dated 29th December 2019.
  • Moreover, when the petitioner received a personal hearing notice, it was informed to the respondent authority vide letter dated 18th June 2021 that the petitioner has already submitted a detailed reply, enclosing the copy thereof.
  • Even then the respondent authority has passed the impugned order dated 30th June 2021 issued on 6th July 2021, observing that no reply has been submitted by the petitioner.

The case of the petitioner is that tax if any was payable on reverse charge and that has not been considered at all in the impugned order.

On behalf of the respondents, there is no denial to the above-stated fact.

Held: –

  • The Hon’ble Court after considering the submissions made and facts of the case, being satisfied with the submissions made on the behalf of the petitioner, found that the petitioner had responded to the show cause notice and the same should have been considered while passing the impugned order issued on 6th July 2021.
  • Further as the same has not been done in the instant matter, the impugned order requires to be set aside and quashed.
  • Lastly, it was observed by the Hon’ble Court that ‘Before we part, we have to note that this is one more case where respondents have passed such order without applying its mind and without considering the records.’

The Hon’ble Court with the above findings, remanded the matter for denovo consideration with the directions to pass an order within eighty weeks after providing the opportunity of personal hearing to the petitioner.  If the petitioner wishes to file any written submissions, petitioner may do so within three working days of the personal hearing.


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