| Authored by R & D Law Chambers LLP | Practice led by Ravish Bhatt. Dual-qualified lawyer (India and England & Wales) | Bar Council of Gujarat, Enrolment G/504/2008 | SRA (non-practising) Registration No. 492 477 | ADIT, Chartered Institute of Taxation, London
Published: 3 October 2026 | Last reviewed: 3 October 2026 |
| This article states the position under section 75 and section 107 of the Central Goods and Services Tax Act, 2017 (the CGST Act) and Article 226 of the Constitution as at 3 October 2026. It concerns orders passed without a hearing. Challenges at the show cause notice stage, and cancellation of registration, are dealt with separately. |
| Short answer. Yes. Section 75(4) of the CGST Act requires a hearing whenever an adverse decision is contemplated, whether or not the taxpayer asked for one, and the Gujarat High Court has held that ticking “No” in the reply form does not waive it. But the usual result of winning is a remand for a fresh order. The appeal under section 107 cannot remand, so it is the route to a decision on the merits. |
Index of Topics
- What Section 75(4) Requires
- Ticking “No” in the Reply Form Does Not Waive the Hearing
- Gujarat’s “Three Hearings”: Where It Comes From
- What Winning Gets You: Remand, Not Relief
- Writ or Appeal After the Order
- Building the Record for Either Route
- Frequently Asked Questions
- How R & D Law Chambers Works on These Matters
1. What Section 75(4) Requires
| Short answer. Section 75(4) gives two independent triggers for a hearing: a written request, or an adverse decision being contemplated. The second needs no request at all. Section 75(5) caps adjournments at three, granted for sufficient cause, and section 75(6) requires the order to set out the relevant facts and the basis of the decision. |
The wording of section 75(4) is that 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 that person. Because the second limb stands on its own, an officer who proposes to confirm any part of a demand must offer a hearing even to a taxpayer who never asked for one.
Section 75(5) lets the officer adjourn the hearing for sufficient cause, with reasons recorded, but not more than three times during the proceedings. Section 75(6) requires the order to set out the relevant facts and the basis of the decision. Section 75(7) prevents the order from demanding more than the notice proposed, or confirming a demand on grounds not in the notice. Each is a separate ground of challenge.
2. Ticking “No” in the Reply Form Does Not Waive the Hearing
| Short answer. In Komal Jayeshbhai Hemavat v State Tax Officer, decided on 2 April 2026, a Division Bench of the Gujarat High Court held that a taxpayer’s selection of “No” for personal hearing in Form GST DRC-06 cannot override section 75(4). It quashed an order under section 74 passed without a hearing and remanded the matter. |
The taxpayer had replied to a section 74 notice in Form GST DRC-06 and selected “No” in the personal hearing box. The officer passed the order without a hearing. The State defended that course on the strength of the form. The Court rejected it, holding that the option chosen in the form could not override the statutory mandate, and that it was incumbent on the authority to grant a hearing (Komal Jayeshbhai Hemavat v State Tax Officer (4), Special Civil Application No. 6209 of 2024, paragraphs 6 and 7).
The practical lesson cuts both ways. A taxpayer that ticked “No” has not lost the point. But the simpler course is never to tick it: ask for a hearing in the reply, in writing, so the first limb of section 75(4) is engaged as well as the second.
3. Gujarat’s “Three Hearings”: Where It Comes From
| Short answer. Gujarat High Court orders now say that three opportunities of hearing are envisaged before an adverse order. In Komal Jayeshbhai Hemavat that proposition rested on the State’s own concession and on an earlier service tax decision, not on the words of section 75(4). It is the current Gujarat position, but its foundation is narrower than it looks. |
In Komal Jayeshbhai Hemavat the Assistant Government Pleader accepted that three personal hearings are envisaged under section 75(4), and the Court recorded that the stand therefore remained uncontroverted (paragraphs 6 and 8). The Court also relied on Yadav Trailor Transport Co. v Union of India (Special Civil Application No. 3027 of 2025), a service tax matter under the Finance Act, 1994, which in turn applied the reasoning in Regent Overseas on section 33A of the Central Excise Act, 1944: three permitted adjournments imply four hearing dates, so a single notice fixing three dates does not exhaust them.
The text of section 75 does not itself count hearings. It guarantees an opportunity of hearing on either trigger and permits up to three adjournments for sufficient cause. For a Gujarat business the practical position is favourable, because the State has conceded the point in this Court. The argument is strongest where no hearing at all was offered, and weakest where the taxpayer was offered dates and did not attend without seeking an adjournment.
4. What Winning Gets You: Remand, Not Relief
| Short answer. When the Gujarat High Court quashes an order for want of a hearing, it remands the matter for a fresh order. In Komal Jayeshbhai Hemavat it quashed the order and allowed 12 weeks for a fresh one, without deciding the merits. The demand survives; what the taxpayer gains is a hearing and a reasoned order. |
Komal Jayeshbhai Hemavat set aside the order and directed a fresh order within 12 weeks (paragraph 9). The decision it followed, Yadav Trailor, expressly recorded that the Court had not gone into the merits. That is the ordinary shape of relief for a breach of natural justice: the Court corrects the process and leaves the substance to the authority.
Section 75(3) of the CGST Act allows an order required to be issued in pursuance of a court’s direction to be issued within two years of the communication of the direction, unless the court fixes a shorter period, as the Gujarat High Court did in Komal. A remand therefore reopens the adjudication rather than closing it.
5. Writ or Appeal After the Order
| Short answer. A breach of natural justice is one of the recognised exceptions to the alternative remedy rule, so a writ lies. But the appeal under section 107 must be filed within three months, extendable by one month only, with a pre-deposit of ten per cent of the disputed tax, and the Appellate Authority cannot remand. It decides the case itself. |
The Supreme Court in Radha Krishan Industries v State of Himachal Pradesh, (2021) 6 SCC 771, paragraph 27(iii), recognised violation of natural justice as an exception to the rule that a writ is not entertained where an effective alternative remedy exists. An order passed without any hearing is the clearest case for that exception.
The appeal route works differently. Section 107(1) allows three months from communication of the order, and section 107(4) allows a further month only on sufficient cause. Section 107(6) requires payment of the admitted amount and ten per cent of the disputed tax, subject to a maximum of twenty crore rupees. Section 107(11) empowers the Appellate Authority to confirm, modify or annul the order but not to refer the case back. A taxpayer whose real complaint is the merits, and who wants them decided, gains more from an appeal in which the missing hearing is cured by a full hearing on the substance.
The two clocks interact. Nothing in section 107 extends the appeal period for time spent in a writ petition, so a petition that fails after the four months have run can leave the business with neither remedy. Decide the route inside the first three months.
| Writ petition | Appeal under section 107 | |
|---|---|---|
| Best suited to | No hearing offered at all; order on its face in breach of section 75(4) | Dispute on the merits where the taxpayer wants a decision |
| Usual outcome | Order quashed and matter remanded | Order confirmed, modified or annulled; no remand |
| Time | No statutory period | Three months, plus one month on sufficient cause |
| Pre-deposit | None by statute; interim relief discretionary | Admitted amount plus ten per cent of disputed tax, capped at twenty crore rupees |
6. Building the Record for Either Route
| Short answer. Both routes are won on the record. Request a hearing in writing in the reply, keep every portal acknowledgement and hearing notice, seek any adjournment in writing with reasons, and note the date each communication was actually seen. A missing hearing is proved by documents, not by assertion. |
Courts decide hearing complaints on what the file shows: whether a hearing notice issued, how it was served, whether an adjournment was sought and on what grounds, and whether the order engages with the reply. A chronology built from portal records and correspondence turns a general grievance into a specific breach of section 75(4), (5) or (6).
7. Frequently Asked Questions
Is a personal hearing mandatory before a GST demand is confirmed?
Yes, where any adverse decision is contemplated. Section 75(4) of the CGST Act requires an opportunity of hearing in that case even without a request. The Gujarat High Court held in Komal Jayeshbhai Hemavat (2 April 2026) that selecting “No” for personal hearing in Form GST DRC-06 does not waive this requirement.
How many hearings must the GST officer give?
Section 75 does not count hearings. It requires an opportunity of hearing and allows up to three adjournments for sufficient cause. Gujarat High Court orders record that three opportunities are envisaged, a position the State has conceded in that Court and which draws on earlier service tax decisions.
If the order is quashed for want of a hearing, is the demand gone?
No. The usual order is a remand for fresh adjudication after a hearing, without any finding on the merits. Section 75(3) allows an order issued under a court’s direction to be passed within two years of the direction, unless the court fixes a shorter period.
Should I file a writ petition or an appeal against an order passed without a hearing?
A writ suits a case where no hearing was offered at all and a fresh adjudication is acceptable. An appeal under section 107 suits a dispute on the merits, because the Appellate Authority cannot remand and must decide. The appeal must be filed within three months, extendable by one month only.
Does a writ petition stop the time for filing an appeal?
No. Section 107 allows three months from communication of the order and one further month for sufficient cause, and nothing in it excludes time spent in a writ petition. If the petition fails after that period, the appeal may be lost. Choose the route within the first three months.
8. How R & D Law Chambers Works on These Matters
R & D Law Chambers LLP is an Ahmedabad law firm. The practice advises businesses on GST adjudication orders, on appeals under section 107, and on petitions under Article 226 before the Gujarat High Court where an order has been passed in breach of natural justice.
Within that work, the practice advises on compliance with section 75 of the CGST Act, on the choice between a writ petition and an appeal, and on building the hearing record on which either is decided.
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| This article is general information on Indian law as at 3 October 2026 and is not advice on any particular facts. The Gujarat High Court’s position on three hearing opportunities rests in part on concessions made by the State and may be revisited. |