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Judgment
The petitioner is aggrieved against the order in original dated 29.09.2016 passed by the first respondent.
Heard the learned counsel appearing for the petitioner and the learned counsel for the first respondent. The second respondent is only a formal
party, to whom the petitioner has provided some service.
By consent of parties, the main writ petition is taken for final disposal, since the issue involved in this case lies in a narrow campus.
The petitioner got registered and obtained Service Tax Registration under the category of ""maintenance or repair service"". The first respondent
issued a show cause notice on 14.10.2015, calling upon the petitioner to show cause as to why an amount of Rs.47,35,914/- should not be
demanded as differential service tax amount payable for the period from 2010-11 to 2013-14. The petitioner vide letter dated 16.10.2015, citing
some health grounds, sought 30 days time to appear with particulars. Accordingly, the personal hearing fixed on 18.08.2016, was adjourned to
30.08.2016, at the request of the petitioner. Again, the personal hearing was fixed on 20.09.2016, on which day, one K.Srinivasan, the Manager
of the petitioner appeared in personal. It is stated that the said representative, who appeared for personal hearing, sought 10 days time to produce
the invoices, agreements and receipts in support of their contention. However, the impunged order came to be passed on 29.09.2016, without
even waiting for the petitioner to file such documents within the time of 10 days. It is stated that the petitioner, has in fact appeared on 30.09.2016,
with all the details and however, he was informed that already an order came to be passed already on 29.09.2016 itself. Therefore, the present
writ petition is filed challenging the impugned order mainly on the ground of violation of the principles of natural justice.
Learned counsel appearing for the petitioner submitted that once the first respondent has granted 10 days time on 20.09.2016 for production of
the relevant documents viz., invoices, agreements and receipts, ought to have waited till the 10thth day for the petitioner to respond. Therefore, he
contended that the order passed on the 9thth day viz., 29.09.2016, is undoubtedly against the principles of natural justice.
On the other hand, the learned counsel for the first respondent submitted that no such time was granted to the petitioner as prayed by them on
20.09.2016. Therefore, he submitted that when personal hearing was given to the petitioner and adjourned such hearing on two occasions at the
instance of the petitioner, he cannot make a complaint that he was not given an opportunity of personal hearing.
Heard both sides.
The grievance of the petitioner in this writ petition is that the first respondent has passed the impugned order without even waiting for the
petitioner to respond within the time of 10 days as granted on 20.09.2016, for production of material documents viz., invoices, agreements and
receipts. The petitioner also filed a Rectification Application on 14.11.2016, wherein he has specifically stated that his representative appeared on
30.09.2016 with relevant documents and however, he was informed that the order in original was passed already on 29.09.2016 itself.
No doubt, it is contended by the learned counsel for the first respondent that no such time was granted to the petitioner. But perusal of the
impugned order would show that the contention of the learned counsel for the first respondent is not factually correct, as it is very clear from the
reading of paragraph No.7 of the order that on 20.09.2016, the Manager of the petitioner has appeared for personal hearing and sought for 10
days time for production of invoices, agreements and receipts and that the first respondent has in fact granted such time. Even though the impugned
order does not speak specifically as though such request was granted, the entire reading of the paragraph No.7 would show that the first
respondent, had in fact granted such time. For proper appreciation, paragraph 7 of the impugned order is extracted as hereunder:
7.Personal hearing was fixed on 18.8.2016 and the assessee vide letter dated 18.8.2015 sought for another PH. Another PH was fixed on
30.8.2016 and assessee vide letter dated 29.8.2016 sought to fix PH after 15.9.2016. Personal hearing was fixed on 20.09.2016 and Shri
K.Srinivasan, Manager appeared for P.H. In the PH the manger submitted that after reverse charge mechanism whatever the tax liability, he had
already paid it and when asked about details w.r.t to invoices and agreements and receipts, he submitted that he would submit the same within 10
days. Till date, no reply was received.
Therefore, it is evident that the petitioner''s representative appeared on 20.09.2016 and sought for 10 days time for production of those
documents and that the respondent has also granted such time. However, the fact remains that the impugned order came to be passed on the 9thth
day itself, viz.,29.09.2016. As rightly contended by the learned counsel for the petitioner, the first respondent has not waited for the petitioner to
submit those materials within the time granted and therefore, the impugned order violates the principles of natural justice.
Considering the above stated facts and circumstances, I am of the view that the petitioner must be given one more final opportunity for placing
all the materials, for the first respondent to consider and decide the matter on merits. Accordingly, the writ petition is allowed and the impugned
order in original is set aside and the matter is remitted back to the first respondent for passing a fresh order, after giving due opportunity of
personal hearing to the petitioner. Needless to say that the petitioner shall not seek any further time. The petitioner or his representative has to
appear before the first respondent on 10.04.2017, with all relevant materials and documents. The first respondent shall hear the petitioner or his
representative on the said day and thereafter, pass the order in original on its own merits and in accordance with law within a period of four weeks
thereafter. It is made clear that this court has not expressed any view on the merits of the claim made by the petitioner in respect of the order in
original, as it is for the first respondent to consider and decide. No costs. The connected miscellaneous petition is closed.