Madras High Court
Case BriefsHigh Courts

   

Madras High Court: Anita Sumanth, J. set aside the impugned order which rejected a registration application filed under Section 22 read with Section 25 of Central Goods and Service Tax (‘CGST Act') and Rule 8 of CGST Rules, without assigning proper reasons and adhering to proper procedure.

The petitioner filed an application seeking registration in accordance with Section 22 read with Section 25 of the CGST Act, 2017 and Rule 8 of the CGST Rules, 2017 in respect of a rice mandi which was duly acknowledged, and physical verification was also duly undertaken. A notice was issued by the respondent officer seeking clarification as the application did not enclose the details of the principal place of business of the petitioner. Pursuant to which, a copy of the rental / lease deed was uploaded however, registration was refused by way of a monosyllabic order simply mentioning ‘rejected’ without assigning any reasons or explanation for rejection. Aggrieved by this, the present petition was filed.

Rule 9(4) of the Central Goods and Services Tax Rules, 2017 states:

‘9. Verification of the application and approval

………….(4) Where no reply is furnished by the applicant in response to the notice issued under sub-rule (2) or where the proper officer is not satisfied with the clarification, information or documents furnished, he [may], for reasons to be recorded in writing, reject such application and inform the applicant electronically in FORM GST REG-05.’

The Court noted that the word ‘may’ only refers to the discretion to reject and not to blatantly violate the principles of natural justice. If the assessing authority is inclined to reject the application, which he is entitled to, he must assign reasons for such objection and adhere to proper procedure, including due process.

Thus, the Court allowed the petition and set aside the impugned order.

[B C Mohankumar v. Superintendant of Central Goods and Service Tax, WP No. 13272 of 2022, decided on 16-06-2022]


Advocates who appeared in this case :

Adithya Reddy, Advocate, for the Petitioner;

Prakash for Mr. Rajendran Raghavan Senior Standing Counsel, Advocates, for the Respondent.


*Arunima Bose, Editorial Assistant has reported this brief.

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: The Division Bench of Raghvendra Singh Chauhan, CJ. and Narayan Singh Dhanik, J. decided on a petition which was filed challenging the validity of the order passed by the Single Judge whereby the respondent-writ petitioner, M/s Kohli Enterprises, was not only blacklisted, but even its registration was cancelled by the appellants.

Counsel for the appellants, submitted that the impugned order passed by the Single Judge was a non-speaking order, as it does not spell out the three factors, which were required for grant of a stay order. Therefore, the impugned order passed deserved to be set aside by this Court.

Counsel for the respondent-writ petitioner, submitted that since the petitioner had challenged the jurisdiction of the Regional Manager to pass the impugned order dated 21-10-2021, and since no power of canceling a registration was granted either to the Regional Manager, or to the Managing Director, both the blacklisting, and the cancellation of the registration is patently illegal.

The Court after perusal of the impugned order noted that the Single Judge had merely observed that “having regard to the facts and circumstances of the case and also the reasons indicated in the impugned order, this Court is prima facie satisfied that petitioner has made out a case of grant of interim order”.

The Court found the reasoning given by the Single Judge cryptic as he neither discussed the existence of a prima facie case in favour of the respondent-writ petitioner, nor discussed the balance of convenience, nor discussed the irreparable loss that would be caused to the respondent-writ petitioner in case the stay were not granted by the Court.

The need for passing a reasoned order need not be emphasized. For, it is well known that a judicial order necessarily has to be a reasoned one, where the mind of the learned Court needs to be revealed, and cogent and convincing reasons need to be stated even while granting a stay order.

The Court set aside the impugned order and remanded the case back to Single Judge requesting to decide the Interim Stay Application within a period of two weeks.[Uttarakhand State Warehousing Corporation v. Kohli Enterprises, 2021 SCC OnLine Utt 1313, decided on 22-11-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


Counsel for the appellants. : Mr D.S. Patni, Senior Counsel assisted by Mr Parikshit Saini

Counsel for the respondent. : Mr Anil Kumar Joshi

Case BriefsTribunals/Commissions/Regulatory Bodies

Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Chennai: Coram of P. Dinesha (Member)  and P. Venkata Subba Rao (Member) allowed the application filed by the appellant to praying the Tribunal to recall and rehear the final order passed by the same Bench on 22-02-2018 on the ground that the said order suffered from rectifiable mistakes. The Bench had passed an order whereby they held that the appellant had rendered services other than legal services, and the same was under dispute.

The main contentions put forth by the appellant was that he had furnished all the documents in support of his legal services rendered to Essel Mining Co. Ltd., Gujarat Sidhee Cement Ltd., and to Express Publication of (Madurai) Ltd., but the same was not considered and hence, non-consideration must render the impugned final order a non-speaking order. With regard to the issue of revenue neutrality, the appellant had relied on a decision of the jurisdictional High Court, which was also not referred to nor considered and such non-consideration must again render the impugned final order a non-speaking order. Therefore, the non-consideration of the above orders, as well as documents, must result in the impugned final order being erroneous and amenable to rectification.

On the other hand, the respondent opposed the above contentions arguing that the Bench had passed the impugned final order after hearing both sides and after perusing the appeal records. Since there was no error on record, no intervention was required. Also, interfering with the impugned final order would amount to review, which is not permissible under the law.

The Tribunal pointed out that there was no mention nor discussion as to the applicability of various decisions relied on by the appellant in the impugned final order. There was no dispute that non-consideration of a judgment of the jurisdictional High Court or Supreme Court in itself amounts to a mistake/error on the face of the very order and the same must be rectified. The same was held in V. Guard Industries Ltd. v. Commercial Tax Officer, reported in 2003 (158) E.L.T.806 (Mad.). As there was no discussion on all the various documents relied on by the applicant and furnished in the paper compilation, the Tribunal held that non-consideration of the same amounts to passing a non-speaking order. The impugned final order needed to be recalled and reheard. They directed the Registry to relist the appeal for fresh hearing.[S. Gurumurthy v. Commr. of Central Excise, 2019 SCC OnLine CESTAT 255, decided on 09-09-2019]

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir High Court: The Bench of Ramalingam Sudhakar, J., allowed the appeal against an order of the Deputy Commissioner on the ground that the order was a non-speaking order and was passed without application of mind to the rival claims.

The facts of the case were that the petitioner in SWP No.1118/2015 (Petition 1) was the selected candidate in the newly created Anganwari Centre. She was aggrieved by the order of the Deputy Commissioner stating that the petitioner in SWP No.1418/2015 (Petition 2) seemed to be right claimant for the post of Anganwari Worker instead of the petitioner in Petition 1. Thus selection of the said candidate was quashed and it was directed to initiate fresh selection process action report. Petitioner 2 was aggrieved by the direction issued by the Deputy Commissioner to initiate fresh selection process after setting aside the selection of Petitioner 1. According to her, if the selection is set aside, the selection process would be continued with the next available candidate and that was her grievance. The grievance of Petitioner 1, was that she was not heard and no opportunity was given to her to participate in the process of hearing of the appeal filed by Petitioner 2 and the impugned order did not give any reason as to the claim of the Petitioner 1 and in contrast with that of the claim of Petitioner 2 therefore, it was a non-speaking order and without application of mind purely based on a report of the Child Development Project Officer, ICDS Project.

The Court accepted the plea of Petitioner 1 and ordered that the impugned order should be set aside and the appeal should be considered since the Deputy Commissioner had erred in passing a non-speaking order, without application of mind to the rival claims. [Nisha Rana v. State, 2018 SCC OnLine J&K 1049, Order dated 26-02-2018]

Patna High Court
Case BriefsHigh Courts

Patna High Court: A Single Judge Bench comprising of Anil Kumar Upadhyay, J. quashed an office order issued against a delinquent employee ruling that the disciplinary authority had not assigned reasons for the said order and had also not given an opportunity of hearing to the employee.

The instant petition was filed having been aggrieved by an office order inflicting upon him major punishment of stoppage of two annual increments with cumulative effect, censure, non-payment of salary for the period of suspension and punishment that he shall not hold the post of Headmaster-cum-Drawing & Disbursing Officer in future.

The Court noted that the petitioner had been proceeded against on the basis of charges submitted by the District Superintendent of Education, Munger. After enquiry report, second show cause notice was issued to him in the form of impugned office order. The said second show cause notice which recorded a finding different from that of the enquiry officer did not accord reasons for order and no opportunity of hearing was provided to the petitioner.

The Court placed reliance on dictum of  Apex Court in Punjab National Bank v. Kunj Behari Misra, (1998) 7 SCC 84 and observed that while the finding of enquiry officer is not binding on the disciplinary authority, but while differing with the finding disciplinary authority is required to assign reasons and provide opportunity of hearing so that the delinquent may have an opportunity to persuade it in respect of favourable finding of the enquiry officer. Further, Rule 18 of the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005 made it obligatory for the disciplinary authority to follow the principles laid down in the Kunj Behari case.

In view of the above, the petition was allowed and impugned office order was quashed for being issued without following principles of natural justice and for being a non-speaking order.[Yogendra Paswan v. State of Bihar,2018 SCC OnLine Pat 2108, decided on 22-11-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

Appellate Tribunal for Electricity, New Delhi: A Division bench comprising of N.K. Patil, J. and S.D. Dubey (Technical Member) allowed an appeal, filed against Central Electricity Regulatory Commission, holding that the order of Commission was a non-speaking order.

Appellant, a joint venture company between National Thermal Power Corporation Ltd. and Uttar Pradesh Rajya Vidyut Utpadan Nigam Ltd., was working on a project for development of a 1320 MW coal-based generating station at Meja in Uttar Pradesh. Respondent is the regulator which determines generation and transmission tariff for central government-owned or controlled companies including the appellant.

In a petition, the respondent passed an order directing appellant to pay Interest during Construction (IDC) and Incidental Expenditure during Construction (IEDC) for the period of delay in commissioning of Meja-Allahabad line and also for payment of transmission tariff. Aggrieved by the said order, the present appeal was preferred by the appellant under Section 111 of the Electricity Act, 2013. The sole point of challenge in the appeal was that the order passed by respondent is a non-speaking order bereft of any analysis or reasons, and while passing the impugned order, the respondent Commission had failed to consider the relevant material placed on record by the appellant.

After perusing the order passed by the respondent Commission, the Hon’ble Appellate Tribunal noted that there was no discussion, reasoning or finding therein in relation to the case of appellant. Relying on the judgment of Apex Court in Commissioner of Police, Bombay v Gordhandas Bhanji, 1952 SCR 135, the Tribunal observed that it is a settled principle of law that an order passed by a statutory body should speak for itself, and cannot be supplemented later with fresh reasons. Public orders, publicly made, in the exercise of statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order. Since such an order has a public effect and also affects the acts and conduct of those to whom it is addressed, it must be construed objectively with reference to the language used in the order itself.

On the aforesaid reasoning, finding that there was no reasoning or discussion in the respondent’s order, the Tribunal held that the said order being a non-speaking order was liable to be set aside. [Meja Urja Nigam Private Limited v. Central Electricity Regulatory Commission,2018 SCC OnLine APTEL 103, decided on 28-09-2018]

 

Case BriefsHigh Courts

Allahabad High Court: A writ petition filed under Article 226 of the Constitution challenging the order of Divisional Head Manager, UPSRTC, whereby petitioner’s appeal against the order of his removal from service was dismissed; was decided by a Single Judge Bench comprising of Manoj Kumar Gupta, J., wherein the said impugned order was quashed holding it to be a non-speaking order.

The petitioner was holding the post of senior clerk in UPSRTC and was subjected to disciplinary proceedings on the charge that he misbehaved with the station incharge of a certain depot. The petitioner denied the incident. Petitioner’s case was that respondent 5-complainant was an interested witness, and although it was alleged that the said incident took place in front of entire staff, still no independent witness was examined. Petitioner submitted that the order of removal was passed in a mechanical manner observing that the petitioner failed to prove that the charges leveled against him were not correct; however the burden to prove the charges was on the respondents. It was further submitted that the order dismissing petitioner’s appeal was also passed in a mechanical manner without adverting to the specific grounds raised by the petitioner in his appeal.

In order to settle the controversy, the High Court perused the record and found that the order of appellate authority did not even refer to the grounds on which the petitioner challenged the order of his removal from service. The reason passed by the appellate authority was a non-speaking order which failed to disclose reasons for arriving at the conclusion that contentions raised by the petitioner were without any substance. The appeal filed by the petitioner was a statutory appeal under UPSRTC Employees Service Regulations, 1984 and while considering such an appeal it was incumbent upon the appellate authority to have addressed itself to the grounds raised by the petitioner in the appeal. The Court observed that it is well settled that reasons are the heart and soul of any order and in the absence thereof, such order becomes vulnerable.

Consequently, the petition was allowed and the order of the appellate authority was set aside sending the matter back for fresh consideration. [Shamsuddin v. State of U.P., 2018 SCC OnLine All 211, order dated 14.03.2018]