Assessment made on the basis of facebook post without giving opportunity of being heard bad in Law: HC

The petitioner has approached this Court being aggrieved by Ext.P6 order of assessment dated 19.07.2022 under the provisions of the CGST / SGST Acts, completing the assessment for assessment year 2017-18, treating the product of the petitioner as a branded item, for determining the rate of tax.

2. The learned counsel appearing for the petitioner states that the petitioner had not started the business of branded rice in the financial year 2017-18 and that even the machinery for dealing in branded rice was purchased only in the year 2019. It is submitted that the proceedings which culminated in Ext.P6 order appears to have been initiated on the basis of a facebook post published by the son of the petitioner in the year 2019 regarding the starting of business in branded rice. It is submitted that the assessing officer has not considered any contention taken by the petitioner in Ext.P6. It is also submitted that even if the facebook post was to be taken into account, the same cannot be a material for completing assessment against the petitioner for financial year 2017-18 as the facebook post itself was only in the year 2019.

3. The learned Senior Government Pleader objects the grant of any relief to the petitioner stating that the petitioner has an adequate alternate remedy of appeal under Section 107 of the CGST / SGST Acts. It is submitted that impugned order was issued in the month of July and the writ petition itself is highly belated. It is also pointed out that recovery proceedings have been initiated following the demand raised on account of Ext.P6 order.

4. The learned counsel for the petitioner submits that the judgment of this Court in M/s. Ozone Granites [P] Ltd v. The Intelligence Officer, Commercial Taxes and others [2018(3) KHC 906], is authority for the proposition that materials such as website information cannot be taken into account.

5. Having heard the learned counsel for the petitioner and the learned Senior Government Pleader for the respondents, I am of the view that the petitioner is entitled to succeed. A reading of Ext.P6 order shows that the proceedings were initiated and continued against the petitioner on the basis of certain facebook posts which showed that the petitioner was dealing in branded rice. The contentions taken by the petitioner that the facebook post itself was of the year 2019 and the assessment proceedings were for the year prior to that does not seem to have been considered by the assessing authority. Further, the contention taken by the petitioner that the petitioner started dealing in branded rice only after the financial year in question has also not been adverted to by the assessing officer. Therefore, Ext.P6 is quashed, the matter is remanded to the file of the 1st respondent, who shall pass fresh orders after affording to the petitioner an opportunity of being heard and also giving to the petitioner an opportunity of producing such documents and materials as he may wish to rely on. Needless to say the fresh assessment order will advert to all the contentions taken by the petitioner. The fresh orders shall be passed within a period of two months from the date of receipt of a certified copy of this judgment. The petitioner shall mark appearance before the 1st respondent at 11.00AM on 21.11.2022 and thereafter the proceedings shall be completed as directed above.

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