# M/s Saini Zarda Store v. State of U.P. & Ors

- **Citation:** (2025) 5 ILRA 265
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-01
- **Case number:** Writ Tax No. 1828 of 2025
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-saini-zarda-store-v-state-of-u-p-ors-53354
- **Pages:** 4

## Headnote

Services Tax Act, 2017- order of assessing
officer - u/s 74 of the GST Act- absolutely ex
parte- neither alleged show cause notice was
ever brought to the knowledge -nor service was
physically ever effected upon petitioner- party
under liability of tax in an ex parte order needs
at-least an opportunity to put up his defenseorder passed by the assessing officer shall be
taken to be notice within the meaning of Section
74 of the GST Act, 2017 to enable the petitioner
to file his objection.

W.P. disposed. (E-9)

List of Cases cited:

## Text

5 All. M/s Saini Zarda Store Vs. State of U.P. & Ors.
265
as was required under sub-section (2)(c) of
Section
16
before
ITC
is
claimed.
Petitioner could not demonstrate before the
taxing authorities or before this Court that
tax was in fact deposited by supplier
pursuant to issuance of tax invoice.

32. Reliance place upon the various
judgments by petitioner's counsel does not
help her case as no consideration of
mandatory provision of Section 16(2)(c) of
the Act has been considered. Moreover, in
many of the cases placed before the Court,
the matter has been remanded back to
authorities for consideration afresh. In
Rimjhim Ispat Ltd. (supra), the showcause notice issued to petitioner therein
was only stayed though challenge is to the
vires of Section 16(2)(c) which still holds
the field.

33. Finding of fact has been recorded
by both taxing authorities which needs no
interference of this Court.

34.
Considering
the
facts
and
circumstances of the case, I find that no
interference is required in the orders
impugned.

35. Writ petition fails and is hereby
dismissed.

36. Interim order, granted earlier,
stands discharged.
----------
(2025) 5 ILRA 265
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.05.2025

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ Tax No. 1828 of 2025
M/s Saini Zarda Store ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shubham Agrawal

Counsel for the Respondents:
C.S.C.

Petitioner, a proprietorship engaged in the
business of trading under the Goods and
Services Tax Act, 2017- order of assessing
officer - u/s 74 of the GST Act- absolutely ex
parte- neither alleged show cause notice was
ever brought to the knowledge -nor service was
physically ever effected upon petitioner- party
under liability of tax in an ex parte order needs
at-least an opportunity to put up his defenseorder passed by the assessing officer shall be
taken to be notice within the meaning of Section
74 of the GST Act, 2017 to enable the petitioner
to file his objection.

W.P. disposed. (E-9)

List of Cases cited:

1. Shyam Roshan Transport Vs St. of U.P. & ors.
-Writ Tax No. 1756 of 2024 decided on
21.10.2024

2. Atul Agrwal Vs St. of U.P. & ors. -Writ Tax No.
1585 of 2024 decided 18.10.2024

3. M/s Akriti Food Industry LLP Vs St. of U.P. &
ors., Writ Tax No. 2070 of 2024 decided on
3.12.2024

4. M/s Sai Dham Residency Vs St. of U.P. & anr.
in Writ Tax No.- 1175 of 2024 decided on 28th
August, 2024

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard learned counsel for the
petitioner and learned Standing Counsel.

2. Invoking extra ordinary jurisdiction
of this Court under Article 226 of the
266 INDIAN LAW REPORTS ALLAHABAD SERIES
Constitution, petitioner, a proprietorship
concern engaged in the business of trading
under the Goods and Services Tax Act,
2017 and hence seeks to challenge the
order dated 22nd August, 2024 passed in
appeal by Additional Commissioner Grade
II, first appellate authority.

3. Submission advanced by learned
counsel for the petitioner is that that order
of assessing officer fastening the petitioner
concerned with a liability of tax upon the
sale for the relevant financial year in
question alongwith interest and penalty in
purported exercise of power under Section
74 of the GST Act, is absolutely ex parte
one as neither alleged show cause notice
was ever brought to the knowledge of the
petitioner, nor service of the same was
physically ever effected upon petitioner.
Petitioner
got
knowledge
of
the
proceedings conducted its back when the
order came to be uploaded on the dash
board with the tab "view additional notices
and orders". Thus, it is argued that
petitioner having failed to notice, the notice
GST DRC- 01, it could not make any reply
at all.

4. It is also claimed that the order
dated 6th October, 2021 was also not
communicated on e-mail to the petitioner.
It is further pleaded that no sooner did
petitioner come to know the order of
assessing officer in March, 2024, petitioner
immediately preferred statutory appeal
before first appellate authority, however,
same has been rejected on the ground of it
being barred by time. Thus, two fold
submissions have been advanced by the
learned counsel for the petitioner:

i. In the absence of service of
notice/ the show cause notice, petitioner was
denied opportunity to put up its defence so as
to justify no liability of tax qua business of
trading and sale under the GST; and

ii. Remedy of appeal having been
denied on the ground of delay that was for
want of knowledge, petitioner has been
rendered remediless.

5. It is also argued by Sri Shubham
Agrawal, learned counsel for the petitioner
that no opportunity of hearing was afforded
to the party which was passing the order by
Assessing Authority and only application NA
(not applicable) was recorded. It is submitted
that non compliance of the show cause notice
could have only led to the closure of
opportunity to submit reply but yet the show
cause notice was not there available but by
way of additional notice.

6. Learned counsel for the petitioner
further submitted that controversy qua issue
of show cause notice not being effected upon
for it being not available upon tab 'view
notices and orders' at the GST Portal and then
rendering the party defenseless in the matter
of liability of tax under the GST Act is no
more res integra. It is submitted that division
bench of this Court in the Ola Fleet
Technologies Pvt. Ltd. v. State of U.P. and
Others (Writ Tax No. 855 of 2024 decided on
22.07.2024) has dealt with this aspect of the
matter and it has been held that no material
existed to reject the contention advanced on
behalf of the petitioner that order impugned
imposing liability of tax was not reflecting
under tab 'view notices and orders' and so
there remained a valid dispute as to non
consideration/consideration of the various
documents of returns available which could
have been shown in reply to the show cause
notice.

7. The division bench was of the view
that party under liability of tax in an ex
parte order needs at-least an opportunity to
5 All. M/s Saini Zarda Store Vs. State of U.P. & Ors.
267
put up his defense by submitting papers
which may have led assessing officer to
uphold the claim for exemption from tax
liability. The division bench accordingly,
instead of keeping the matter pending
disposed off the same with a direction that
impugned order may be taken as notice to
enable the petitioner to submit his reply and
thereafter assessing officer may have to
pass a fresh order.

8. This above division bench judgment
in Ola Fleet Technologies Pvt. Ltd (supra)
was followed by another division bench in
the matter of Shyam Roshan Transport v.
State of U.P. and 2 Others, (Writ Tax No.
1756 of 2024) decided on 21.10.2024 and
again division bench in the matter of Atul
Agrwal v. State of U.P. and 2 Others (
Writ Tax No. 1585 of 2024 decided
18.10.2024).

9. The view taken by the division
benches as cited before the Court are
absolutely correct on the principle that
nobody should be condemned unheard and
legislature
while
incorporating
the
provision of notice/ show cause notice,
intended so.

10. Recently, in the matter of M/s
Akriti Food Industry LLP v. State of
U.p. and 3 Others, Writ Tax No. 2070 of
2024 decided on 3.12.2024 , the Court has
set aside the identical order. Accordingly, I
also do not find the orders to be sustainable
and equally do not consider it necessary to
keep this petition pending by inviting
response.

11. Learned counsel for the petitioner
has placed reliance upon the order of
Division Bench of this Court in the case of
M/s Sai Dham Residency v. State of U.P.
and another in Writ Tax No.- 1175 of
2024 decided on 28th August, 2024. Vide
paragraph 3 and 4 of the M/s Sai Dham
Residency the Court has held thus:

"3. In view of the above position
admitted on the record, the only conclusion
possible to be drawn is that the petitioner
was never afforded any opportunity of
personal hearing.

4. Thus, upon service of notice,
the petitioner had been called to file its
reply only. Consequently, non-compliance
of that show cause notice may have only
led to closure of opportunity to submit
written reply. However by virtue of the
express provision of Section 75 of the Act,
even in that situation the petitioner did not
lose its right to participate at oral hearing
and establish at that stage itself that the
adverse conclusions proposed to be drawn
against the petitioner, may be dropped."

12. It is a settled legal principle
evolved in a catena of decisions by this
Court
and
the
Supreme
Court
that
provisions contained under tax statute have
to be very strictly construed the hence
provisions providing for a particular prerequisite like opportunity of oral hearing
before passing of final order, have to be
complied with by the authority. Authority
cannot take it for granted that provisions
providing for personal hearing is an empty
formalities and representation to notice
would suffice the need. In the case of
Commissioner of Customs (Import),
Mumbai v. Dilip Kumar and Company
and others (2018) 9 SCC 1 in which the
Supreme Court vide paragraph 24 has very
clearly observed thus:

"24. In construing penal statutes
and taxation statutes, the Court has to
apply strict rule of interpretation. The
penal statute which tends to deprive a
268 INDIAN LAW REPORTS ALLAHABAD SERIES
person of right to life and liberty has to be
given strict interpretation or else many
innocents
might
become
victims
of
discretionary decision-making. Insofar as
taxation statutes are concerned, Article 265
of the Constitute prohibits the State from
extracting tax from the citizens without
authority of law. It is axiomatic that
taxation statute has to be interpreted
strictly because the State cannot at their
whims and fancies burden the citizens
without authority of law. In other words,
when the competent Legislature mandates
taxing certain persons/ certain objects in
certain
circumstances,
it
cannot
be
expanded/ interpreted to include those,
which
were
not
intended
by
the
legislature."

13. In view of above, I hereby direct
that the order passed by the assessing
officer dated 6th October, 2021 shall be
taken to be notice within the meaning of
Section 74 of the GST Act, 2017 to enable
the petitioner to file his objections and
place its documents before assessing
officer/
competent
authority
for
its
consideration.

14. The petitioner shall be submitting
his reply alongwith document within a
period of eight weeks from today and
thereafter
assessing
officer/competent
authority shall be giving due consideration
to the objections and documents filed and
opportunity of hearing as well and thus
shall be taking decision afresh within a
further period of four weeks.

15. With these above observations and
directions this petition stands disposed of.
----------
(2025) 5 ILRA 268
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.05.2025
BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Matters Under Article 227 No. 1199 of 2025

Virendra Kumar Tripathi ...Petitioner
Versus
Amit Dua & Anr. ...Respondents

Counsel for the Petitioner:
Anil Babu, Ashwaini Mishra

Counsel for the Respondents:
Manas Bhargava

Civil
Law
-
U.P.Regulation
of
Urban
Premises Tenancy Act, 2021 - Sections 9 &
10 - Rent Control - Petitioner was tenant,
running steel furniture shop - Owner sold
house to respondents - Respondents issued
notice for execution of rent agreement on
revised rent at ₹45,000 per month, no
agreement signed - Respondents filed case
under Section 10 of Act, 2021, rent was
fixed at ₹25,000 per month - Petitioner's
Rent Appeal dismissed, affirming earlier
order - Impugned order - From reading of
proviso to Sections 9(5) and 10 of Act, 2021,
it is clear that in absence of rent agreement,
any dispute over revised rent shall be
decided as per Section 10, considering
prevailing market rent in surrounding area -
There was no tenancy agreement before
Act, 2021, and none was signed after
receiving notice - Rent Authority, considered
rent agreement of same locality which was
₹60,000/month - Rent Authority fixed rent
at ₹25,000 per month based on prevailing
market rates, affirmed by Rent Tribunal -
Thus, Rent Authority and Rent Tribunal
rightly fixed rent as per Section 10 read with
proviso to Section 9(5) of Act, 2021. (Para 4,
13 to 15)

Petition dismissed. (E-13)
(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard Sri Shashi Nandan, learned
Senior Counsel, assisted by Sri Anil Babu,