Anchored in Evergreen Recyclekaro (India) Ltd. v. Principal Commissioner of State Tax (Bombay High Court)

1. The Anchor Case, Correctly Stated

Evergreen Recyclekaro (India) Ltd. v. Principal Commissioner of State Tax, Konkan Bhavan, Belapur & Ors., Bombay High Court, Writ Petition No. 12067 of 2025 (Date of Judgment: June 24, 2026) concerned a Section 74(9) demand where the show-cause notice and adjudication order had been uploaded only under the GST portal’s ‘Additional Notices and Orders’ tab rather than the principal ‘View Notices and Orders’ tab.

The Court held this to be ineffective service, compounded by the Revenue’s own admission that no personal hearing had in fact been granted.

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Relying on its earlier ruling in T.S. Lines India Pvt. Ltd., the Bench rejected the objection that the petitioner should have pursued the alternate remedy of appeal under Section 107, holding that a breach of natural justice independently attracts writ jurisdiction.

The matter was remanded with directions to permit a fresh reply, grant a personal hearing, and hold any adverse order in abeyance for two weeks to enable appeal.

The proposition the case actually supports is narrower and, in one sense, stronger than ‘a written request for hearing was ignored’: it is that defective or misleading portal service, combined with an admitted failure to hold any hearing, independently vitiates adjudication—without the Court needing to reach the question of whether a request had been made at all.

2. The Statutory Anchor—Section 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.”

— Section 75(4), CGST Act, 2017 (in pari materia in the State GST enactments)

The Allahabad High Court has authoritatively construed the word ‘or’ in this subsection as disjunctive so that the two limbs—a written request and a contemplated adverse decision—operate independently.

A hearing is therefore mandatory in the second case even where the assessee has not asked for one and even where the assessee has affirmatively marked ‘No’ on the portal.

3. Case-Law Compendium (2022–2026)

4. Doctrinal Threads Supported by the Verified Authorities

A. Marking ‘No’ or Filing No Request Does Not Waive the Right

Bharat Mint & Allied Chemicals and Mohini Traders together establish, at Division Bench level, that a hearing is owed once an adverse decision is contemplated, regardless of what the assessee ticks on the DRC-06 portal form.

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B.L. Pahariya Medical Store applies the same principle to direct a fresh SCN where the minimal opportunity of hearing had not first been afforded.

B. Timing: The Hearing Must Genuinely Follow the Reply

Mahaveer Trading Company is the controlling Division Bench authority for the proposition that fixing the personal-hearing date on or before the reply deadline is non-est.

It is reinforced by the Commissioner, Commercial Tax, U.P.’s own Office Memorandum No. 1406 dated 12 November 2024, which the Bench directed the Registrar General to circulate.

Prem Traders and Hitachi Systems India apply this line in 2025–2026, both expressly following Mahaveer Trading and invoking the CBIC Master Circular F.No. 96/1/2017 dated 10 March 2017.

C. Refund Proceedings Attract the Same Safeguard

Credit Agricole CIB Services extends the Section 75(4) logic to refund rejections under the proviso to Rule 92(3) of the CGST Rules, 2017, rejecting the Revenue’s claim of a hearing that, on the timeline pleaded, could not genuinely have followed the reply.

D. The Bombay High Court Line

Mauli Sai Developers (2024) and Evergreen Recyclekaro (2025–2026), read together, show the Bombay High Court applying Section 75(4) with equal rigour to construction-sector audits and to portal-service defects, respectively—in each case treating the personal hearing as a free-standing safeguard that written submissions, however fully considered, cannot substitute.

5. Practitioner Checklist

1. In drafting a reply to a show-cause notice, expressly request a personal hearing under Section 75(4) (Form GST DRC-06) and retain proof of filing, even though—per Bharat Mint, Mohini Traders, and B.L. Pahariya—the request is not strictly a precondition where an adverse decision is contemplated.
2. Where the SCN or reminder shows ‘NA’ or no hearing particulars, object in writing before any order is passed, and preserve the portal screenshot.
3. Where the hearing date precedes or coincides with the reply deadline, invoke Mahaveer Trading Company and Office Memorandum No. 1406 dated 12.11.2024 in a written objection before the order is passed, and again as a ground of challenge if it is not.
4. In refund matters, insist on a genuine post-reply hearing under the proviso to Rule 92(3), citing Credit Agricole CIB Services.
5. Where the GST portal displays the SCN or order under ‘Additional Notices and Orders’ rather than the principal tab, plead defective service independently of the hearing point, citing Evergreen Recyclekaro and T.S. Lines India.

Written By: Inder Chand Jain
Ph no: 8279945021, Email: [email protected]

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