# M/S Jaiprakash Thekedar v. Commissioner, Commercial Taxes & Anr

- **Citation:** (2023) 1 ILRA 1290
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-22
- **Case number:** Writ Tax No. 1511 of 2022
- **Bench:** Manoj Kumar Gupta, Jayant Banerji
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-jaiprakash-thekedar-v-commissioner-commercial-taxes-anr-49117
- **Pages:** 4

## Headnote

Civil Law - Uttar Pradesh Goods & Services
Tax Act, 2017- Registration of petitioner-firm
was cancelled - Show cause notice was given
without the date of appearing - Ex parte
decision held illegal, void and a nullity in the
eyes of law- Petitioner allowed to the Revenue
to proceed. (E-9)

List of Cases cited:

Pushpam Reality & ors. Vs St. Tax Officer & ors.

## Text

1290 INDIAN LAW REPORTS ALLAHABAD SERIES
process which is not the spirit of the order
passed by this Court;

(iv) These cases are remitted to the
authority of the district concerned for reexamination
thereof
considering
the
aforesaid judgment of the Supreme Court
and to take a final decision thereon.

(v) The entire process shall be
completed by the competent authority
within a period of eight weeks from the
date of receipt of a copy of this order,
considering the respective writ petition as
representation of the candidate concerned;

(vi) It is further directed that in case
any candidate is found entitled for
appointment and is offered appointment on
review of his/her case in terms of the
aforesaid directions, he/she shall get all the
benefits from the date, he/she joins the
service.

(vii)
Any
recovery
proceedings,
initiated, by the concerned authority shall
be kept in abeyance and shall be subject to
the
decision/outcome
of
competent
authority of the district concerned.

17. With the aforesaid directions, the
writ petitions are disposed of. It is made
clear that this Court has not expressed its
view on the merits of any individual case
and the competent authority of the district
concerned is at liberty to take an
independent decision within the parameters
fixed by the Judgment of the Hon'ble Apex
Court as well as the Division Bench of this
Court.

18. In the peculiar facts of the present
case, there shall be no order as to cost.
----------
(2023) 1 ILRA 1290
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.12.2022

BEFORE
THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE JAYANT BANERJI, J.

Writ Tax No. 1511 of 2022

M/S Jaiprakash Thekedar ...Petitioner
Versus
Commissioner, Commercial Taxes & Anr.
 ...Respondents

Counsel for the Petitioner:
Ms. Pooja Talwar

Counsel for the Respondents:
C.S.C.

Civil Law - Uttar Pradesh Goods & Services
Tax Act, 2017- Registration of petitioner-firm
was cancelled - Show cause notice was given
without the date of appearing - Ex parte
decision held illegal, void and a nullity in the
eyes of law- Petitioner allowed to the Revenue
to proceed. (E-9)

List of Cases cited:

Pushpam Reality & ors. Vs St. Tax Officer & ors.

(Delivered by Hon'ble Manoj Kumar
Gupta, J. & Hon'ble Jayant Banerji, J.)

1. Heard Ms Pooja Talwar, learned
counsel for the petitioner and Sri Ankur
Agarwal, learned counsel for the revenue.

2. The petitioner is aggrieved by
cancellation of the registration of the
petitioner-firm under the provisions of the
Uttar Pradesh Goods and Services Tax Act,
2017 and the coercive action sought to be
taken against the petitioner as a result of
cancellation of the registration.

3. The petitioner was given a show
cause notice on 31.08.2019 requiring the
petitioner to submit reply within seven
working days from the date of service of
the notice. The notice further mentions that
if the petitioner fails to furnish reply within
1 All. M/S Jaiprakash Thekedar Vs. Commissioner, Commercial Taxes & Anr.
1291
the stipulated date or fail to appear for
personal hearing on the appointed date and
time, the case will be decided ex parte on
the basis of available records on merits. It
was followed by impugned cancellation
order dated 21.09.2019 which reads as
below :

"This has reference to your reply dated
10/09/2019 in response to the notice to
show cause dated 31/08/2019 whereas no
reply to notice to show cause has been
submitted.

The effective date of cancellation of
your registration is 21/09/2019

Determination of amount payable
pursuant to cancellation :

Accordingly, the amount payable by
you and the computation and basis thereof
is as follows :

The amounts determined as being
payable above are without prejudice to any
amount that may be found to be payable
you on submission of final return furnished
by you.

You are required to pay the following
amounts on or before 01/10/2019 failing
which the amount will be recovered in
accordance with the provisions of the Act
and rules made thereunder.

Head
Central
Tax
State
Tax/U
T Tax
Integrat
ed Tax
Cess
Tax
0
0
0
0
Interest 0
0
0
0
Penalty 0
0
0
0
Others 0
0
0
0
Total
0.0
0.0
0.0
0.0

Place : Uttar Pradesh
Date : 21/09/2019

JAI PRAKASH

Assistant Commissioner

Mahoba, CTO"

4. Learned counsel for the petitioner
submitted that the service of show cause
notice on the petitioner was not sufficient,
as it was not sent by registered post. It is
urged that the uploading of the aforesaid
notice on the common portal is not
sufficient in view of the technical glitches
being faced in respect thereto. In this
regard, reliance has been placed on a
judgement of Madras High Court in
Pushpam Reality and Others Vs. State Tax
Officer & Others decided on 04.02.2022. It
is further submitted that show cause notice
although
mentions
that
in
case
the
petitioner does not appear on the appointed
date and time fixed for personal hearing, ex
parte order would be passed but the notice
does not specify any date and time and thus
leaving the petitioner in dark about the date
and time on which the petitioner had to
appear for personal hearing. It amounts to
violation of statutory requirement of
according hearing to the person against
whom action is proposed to be taken for
cancellation of the registration and also
breach of principles of natural justice.

5. Learned counsel appearing on
behalf of the revenue submits that service
of notice via common portal is recognized
mode of service under Section 169 of the
Act, and therefore, no exception can be
taken to the mode of service. However, he
is not in a position to dispute that show
cause notice does not mention date and
time on which the petitioner was supposed
to appear for personal hearing.

6. Under first proviso to sub Section (2) to
Section 29 of the Act, the person concerned
has to be given an opportunity of being
1292 INDIAN LAW REPORTS ALLAHABAD SERIES
heard. Rule 22(1) of the U.P. Goods and
Service Tax Rules, 2017 provides that
where the proper officer has reasons to
believe that the registration of a person is
liable to be cancelled under Section 29 of
the Act, he shall issue a notice to such
persons in Form GST REG-17 requiring
him to show cause within a period of seven
working days from the date of service of
such notice as to why such registration be
not cancelled. Form GST REG-17 reads as
follows :

"Form G.S.T. REG-17

[See Rule 22 (1)]

Reference Number- <

To

Registration Number (GSTIN/UIN)

(Name)

(Address)

Show Cause Notice for Cancellation
of Registration

Whereas on the basis of information
which has come to my notice, it appears
that your registration is liable to be
cancelled for the following reasons :

1.

2.

3.

...

You are hereby directed to furnish a
reply to this notice within seven working
days from the date of service of this notice.

You are hereby directed to appear
before the undersigned on DD/MM/YYYY
at HH/MM.

If you fail to furnish a reply within the
stipulated date or fail to appear for personal
hearing on the appointed date and time, the
case will be decided ex parte on the basis of
available records and on merits.

Signature

Designation

Jurisdiction

Place :

Date :

7. The show cause notice given to the
petitioner was as follows :

"Form GST REG-17

[See Rule 22(1)]

Reference
Number
:
ZA090819157466S Date : 31/08/2019

To

JAY PRAKASH KHEWARIYA

KABRAI,
KABRAI,
KABRAI,
Mahoba, Uttar Pradesh, 210424

Show Cause Notice For Cancellation
of Registration

Whereas on the basis of information
which has come to my notice, it appears
that your registration is liable to be
cancelled for the following reasons :
1. Any Taxpayer other than composition
taxpayer has not filed returns for a
continuous period of six months.

You are hereby directed to furnish a
reply to the notice within seven working
days from the date of service of this notice.

If you fail to furnish a reply within the
stipulated date or fail to appear for personal
hearing on the appointed date and time, the
case will be decided ex parte on the basis of
available records and on merits.

Place : Uttar Pradesh

Date : 31/08/2019

JAI PRAKASH

Assistant Commissioner"

8. The show cause notice which has
been given to the petitioner is not in
prescribed format as it is conspicuous by
absence of the date and time on which the
noticee was to appear for personal hearing.
It is also clear from the prescribed format
that the noticee has to be afforded
opportunity of personal hearing and for that
purpose he has to be informed in advance,
1 All. Vinay Rai Vs. State of U.P. & Ors.
1293
the date and time on which hearing will
take place. Since in the instant case, the
show cause notice does not mention the
date and time appointed for personal
hearing, therefore, in our opinion, the
proceedings held in pursuance thereof are
rendered illegal, void and a nullity in the
eyes of law. Resultantly, the impugned
order is hereby quashed.

9. The petition succeeds and is
allowed to the above extent with liberty to
the Revenue to proceed in accordance with
law.
----------
(2023) 1 ILRA 1293
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.01.2023

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BE J.J. MUNIR, J.

Writ (Tax) No. 167 of 2021

Vinay Rai ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Nishant Mishra, Sri Tanmay Sadh, Sri
Yashonidhi Shukla

Counsel for the Respondents:
Sri Nimai Dass, A.C.S.C.
Tax-Petitioner seeks quashing of an order -
Rejecting the request of the tax deposited - The
petitioner, not a director or shareholder in three
companies subjected to tax demands, deposited
₹ one crore as a precondition for hearing an
appeal - Tribunal allowed the appeal and
sought a refund - The impugned order rejected
the refund claim prompting the present writ
petition - Despite a delay of 1766 days, the
respondent's challenge to the Tribunal's order
was dismissed - Court noticing the delay directs
to refund with interest. (E-9)
(Delivered by Hon'ble Rajesh Bindal, C.J.
&
Hon'ble J.J. Munir, J.)

1. Present writ petition has been filed
praying for quashing of the order dated
September 17, 2020 passed by respondent
No. 3 vide which the prayer of the
petitioner for issue of refund of the amount
of tax deposited by the petitioner, in terms
of the order dated October 1, 2007 passed
by a Division Bench of this Court in Civil
Misc. Writ Petition No. 1260 of 2007 titled
as, Sri Anil Rai v. State of U.P. & others,
was rejected. Vide aforesaid order, the
petitioner was relegated to avail of his
statutory remedy and as a precondition for
hearing of appeal, an amount of ₹ one crore
was directed to be deposited.

2. As pleaded in the writ petition, in
the year 2003 ex parte orders were passed
under the U.P. Trade Tax Act, 1948 (for
short, ' the Act of 1948') for the assessment
years 1999-2000 and 2000-2001 against
three different companies namely, M/s
Shristi Agencies (Pvt.) Limited, M/s
Rudder Steels (Pvt.) Ltd. and M/s Shivalik
Ispat and Fabricators Private Ltd., raising a
demand
of
₹
20,80,00,000/-,
₹
6,08,40,000/-
and
₹
6,44,00,000/-,
respectively. The petitioner was not a
director or the shareholder in the aforesaid
three companies. The recovery was sought
to be made from M/s Usha India Ltd. and
M/s Malvika Steel Pvt. Ltd. being debtor of
aforesaid
companies.
In
the
later
companies, the petitioner was a director
and shareholder.

3. The recovery notices issued to the
petitioner in individual capacity was