Patna High Court – Orders
Rajnish Kumar vs Commissioner Of Cgst And Central Excise on 29 April, 2026
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.1338 of 2026
======================================================
Rajnish Kumar Son of Shri Sanjay Kumar, a Proprietor of M/s Raj
Communication, resident of Village Bedhana, Post Bedhana, Thana Barh,
Birhana, Barh, Patna, Bihar- 803213.
... ... Petitioner/s
Versus
1. Commissioner of CGST and Central Excise having its office at Central
Revenue Building, (Annexe), Bir Chand Patel Marg, Patna- 800001.
2. Superintendent, CGST and Central Excise, Kankarbagh Range, Chanpura
Palace, Bank Road, Gandhi Maidan, Patna-800001.
3. Superintendent, Group-05, Central Tax, Audit Circle, 9 Aadarsh Colony,
Kidwaipuri, Patna- 800001.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Hiresh Karan, Advocate
Ms. Shivani Dewalla, Advocate
For the Respondent/s : Dr. K.N. Singh, ASG
Mr. Anshuman Singh, Sr. SG CGST & CX
Mr. Amarjeet, AC to ASG
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE JUSTICE SMT. SONI SHRIVASTAVA
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
2 29-04-2026
Heard learned counsel for the petitioner and learned
counsel for the CGST.
2. The petitioner in this writ application has been
seeking the following reliefs:
“(i) The show cause notice dated 18.06.2025 (as
contained in Annexure- P 2 series) issued by the
respondent no. 3 for the Tax Period 2018-19 to 2022-23
under Section 74 of the Central Goods and Services Tax
Act, 2017 (hereinafter called the Act) for multiple
assessment years in absence of any element of fraud,
willful misstatement or suppression of facts to evade
payment of tax in view of the binding statutory circular
Patna High Court CWJC No.1338 of 2026(2) dt.29-04-2026
2/8issued by the Central Board of Indirect Taxes that too
after expiry of the period of limitation set out in Section
73 (10) of the Act to be set aside and quashed.
(ii) The order dated 07.10.2025 (as contained in
Annexure-P3 series) and also the summary of order in
Form GST DRC-07 for the Tax Periods 2018-19 to 2022-
23 without grant of opportunity of hearing before any
adverse decision being contrary to the statutory provisions
contained in Section 75 (4) of the Act be set aside and
quashed.
(iii) The recovery made by the respondent no. 2 from the
electronic credit Ledger (as contained in Annexure-P4) on
18.11.2025 in the violation of the statutory provisions
contained in the act and the guideline laid down in Sita
Pandey versus the State of Bihar and Ors in CWJC 5407
of 2023 by this Hon’ble High Court be set aside and
quashed with a direction to the said respondent to refund
the recovered amount with interest.
(iv) For ganging any other relief(s) to which the
petitioner is otherwise found entitled to.”
3. Learned counsel for the petitioner submits that vide
Annexure-‘P/2’ series the petitioner was served with a summary
of show cause notice (in short as ‘SCN’) in Form GST DRC-01
for the tax period from April 2018 to March 2023 under Section
74 of the Central Goods & Service Tax Act, 2017 (hereinafter
referred to as the ‘CGST Act, 2017‘). It is his submission that
pursuant to the said SCN (Annexure-‘P/2’ series) before passing
the final order (Annexure-‘P/3’) dated 07.10.2025, the
respondents were obliged to give opportunity of personal
hearing to the petitioner. In paragraph-14 of the writ application,
Patna High Court CWJC No.1338 of 2026(2) dt.29-04-2026
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the petitioner has made the following statements:
” That the petitioner states that the Respondent no. 2
before reaching the adverse decision did not issue any
notice to the petitioner for providing opportunity of
hearing in terms of the statutory provisions mandated in
sub Section 4 of Section 75 of the Act. In the matter of
TATA projects limited versus Union of India & Ors. in
C.W.J.C. No. 7830 of 2024 this Hon’ble High Court
has held that before passing any adverse order an
opportunity of shall be provided to such person against
whom adverse orders are likely to be passed.”
4. While going through the impugned order
(Annexure-‘P/3’), this Court noticed that the Assessing Officer
has recorded in paragraph ‘2’ of the impugned order as follows:
“Date of Personal Hearing was granted on 10.07.2025,
18.07.2025 and 28.07.2025 to the taxpayer. Shri
Ibrahim J Gadly, Chartered Accountant, authorized
representative of the taxpayer appeared in PH on
28.07.2025 and submitted that the defence reply in
written is the final submission of the case and they have
nothing to say in addition to the said defence
reply……”
5. When this Court called upon learned counsel for
the petitioner to demonstrate from the pleadings in the writ
application that he has challenged/assailed the fact stated in
paragraph ‘2’ of the impugned order, learned counsel admits that
in the writ application there is no pleading challenging the
averments present in paragraph ‘2’ of the impugned order.
Learned counsel, still continues to submit that this opportunity
Patna High Court CWJC No.1338 of 2026(2) dt.29-04-2026
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of personal hearing cannot be said to be in terms of the scheme
of the CGST Act, as contained in Sub-section (4) of Section 75
of the CGST Act, 2017. It is his submission that a personal
hearing is required to be given when the Assessing Authority
decided to pass an adverse order. He has relied upon a decision
of the learned co-ordinate Bench of this Court in the case of
Tata Projects Limited Vs. Union of India & Ors. passed in
C.W.J.C. No. 7830 of 2024 (Annexure ‘P/7’). It is his
submission that the personal hearing given to the representative
of the petitioner, as stated in paragraph ‘2’ of the impugned
order, is not a compliance with the mandate of Sub-section (4)
of Section 75 of the CGST Act, 2017.
6. We are, however, not persuaded to accept the
submission of learned counsel for the petitioner. It is evident
from the records that the SCN (Annexure- ‘P/2’) has been
issued under Section 74 (1) of the CGST Act, 2017. Under the
scheme of Section 74 of the CGST Act, 2017, the proper officer
has to determine the amount of tax, interest and penalty due
from the person on whom SCN has been served, after
considering the representation, if any, made by that person. Sub-
section (9) of Section 74 of the CGST Act, 2017 is quoted
hereunder for a ready reference:-
“74. (9) The proper officer shall, after considering the
Patna High Court CWJC No.1338 of 2026(2) dt.29-04-2026
5/8representation, if any, made by the person chargeable
with tax, determine the amount of tax, interest and
penalty due from such person and issue an order.”
7. Section 75 of the CGST Act has been enforced
w.e.f. 28.06.2017. This section starts with a heading “general
provisions relating to determination of tax”. For the purpose of
this case, Sub-section (4) of Section 75 is required to be taken
note of hereunder:
“75. (4) An opportunity of hearing shall be granted
where a request is received in writing from the person
chargeable with tax or penalty, or where any adverse
decision is contemplated against such person.”
8. It is evident on a bare reading of Sub-section (4) of
Section 75 of the CGST Act, 2017 that an opportunity of
hearing has to be given wherever a request has been received in
writing from the person chargeable with tax of penalty. The case
of the petitioner is not covered under this part. The second part
of Sub-section (4) of Section 75 mandates an opportunity of
hearing to be given to the person chargeable with tax or penalty
where any adverse decision is contemplated against such
person. It is, thus, evident on a conjoint reading of Section 74
and Section 75 of the CGST Act, 2017 that after service of SCN
and on receipt of the representation from the person chargeable
with tax, if the Assessing Authority contemplates passing an
adverse order then an opportunity of personal hearing is to be
Patna High Court CWJC No.1338 of 2026(2) dt.29-04-2026
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given. In the present case, this procedure has been followed by
the Assessing Authority inasmuch as after receipt of the
response of the petitioner, the Assessing Authority granted three
opportunities of personal hearing on 10.07.2025, 18.07.2025
and 28.07.2025 to the tax-payer. Sri Ibrahim J Gadly, Chartered
Accountant an authorized representative of the tax-payer
appeared in personal hearing on 28.07.2025 and made a
submission that the defence reply in written is the final
submission in the case and nothing more is to be said in addition
to the said defence reply. This Court, therefore, understands that
the mandate of Sub-section (4) of Section 75 of the CGST Act,
2017 has been fully complied with. In fact, requirement of
giving a personal hearing arises only when the Assessing
Authority contemplates passing an adverse order.
9. A far fetched submission has been made by learned
counsel for the petitioner submitting that the personal hearing
was given on 28.07.2025 but the impugned order (Annexure-
‘P/3’) has been passed on 07.10.2025, therefore, the Assessing
Authority has taken a decision to pass an adverse order on
07.10.2025 hence, he was required to give a personal hearing
once he made up his mind to pass an adverse order. In our
opinion, this is a completely misconceived and misplaced
Patna High Court CWJC No.1338 of 2026(2) dt.29-04-2026
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submission. The opportunity of personal hearing is to be given
to an assessee immediately after the Assessing Officer
contemplates passing an adverse order. By no stretch of
imagination, it can be said that the hearing is to be given once
again. This would amount to adding something to the statute
which are not there. The Judgment in case of Tata Projects
Limited does not say so.
10. In our considered opinion, the statements made in
paragraph ’14’ of the writ application is not only misleading but
would amount to making a false statement in the writ
application. We keep it open to impose an appropriate cost for
this reason at appropriate stage.
11. A second submission has been made by the learned
counsel for the petitioner saying that even if the impugned order
(Annexure-‘P/3′) is not interfered with, the respondents’ action
in realizing the amount under the impugned order (Annexure-
‘P/3’) within 1 ½ month from the date of the impugned order
cannot be justified. It is submitted that the appellant had an
opportunity to prefer an appeal within a period of three months
under Section 107 of the CGST Act, 2017. In his submission, the
judicial pronouncements are there on the subject governing this
issue whereunder it has been held that the taxing authority
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would not be justified in taking coercive means to recover the
amount before expiry of the statutory period within which
remedy of appeal may be applied for.
12. Mr. Anshuman Singh, learned counsel for the
Department of CGST submits on this point that he would
require an instruction from the respondents, particularly with
respect to the documents enclosed by the petitioner from page-
76 to page-85 of the writ application.
13. As prayed, list this matter on 11.05.2026 under the
same heading maintaining its position.
14. Mr. Anshuman Singh shall appraise this Court of
the taken instruction.
(Rajeev Ranjan Prasad, J)
( Soni Shrivastava, J)
devendra/-
U
