IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.3357 of 2022
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M/s Shiwam Eat Uddog through its Proprietors Mritunjay Kumar male, S/o G.K.G.N Puri, aged 49 years, resident of Village, P.O. and P.S.- Bhandajor, District- Nawada ... ... Petitioner/s Versus
1. The State of Bihar through the Commissioner of State Tax, Bihar, New Secretariat, Patna.
2. The Commissioner of State Tax, Bihar, New Secretariat, Patna
3. The Additional Commissioner of State Tax Nawada Division, Nawada.
4. The District Mining Officer Nawada.
... ... Respondent/s ====================================================== Appearance :
For the Petitioner/s : Mrs.Archana Sinha @ Archana Shahi, Advocate For the Respondent/s : Mr.Vikash Kumar, SC-11 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) Date : 28-02-2022 Petitioner has prayed for the following relief(s):
"(i) For quashing of order dated -11.06.2015 (Annexure-9) which was passed by Respondent no 3 for assessment year 2013-14 under section 29(1) of VAT act as the same is an ex party order without giving the proper opportunity to the petitioner.
(ii) For quashing of order dated - 11.06.2015 passed by respondent number 3 in case number 28(1), 81(ET)/2015-16 for assessment year 2013-14 under section 8 E.T read with section Patna High Court CWJC No.3357 of 2022 dt.28-02-2022 2/6 28(1) of VAT act and the same is also an ex party without giving an opportunity to the petitioner.
(iii) For defrezeeing of the bank account in state bank of India, Nawada branch having account number 1113698892 in the name of the petitioner which is the saving bank account.
(iv) For any other consequential relief or reliefs for which the petitioner is found entitled during the course of hearing of this writ petition." Petitioner has prayed for quashing of order dated 11.06.2015 passed by the Additional Commissioner of State Tax Nawada Division, Nawada (Annexure-9) as also the order dated 11.06.2015 passed by the Additional Commissioner of State Tax Nawada Division, Nawada in Case No. 28(1), 81(ET)/2015-16 for the assessment year 2013-14 under Section 8 E.T. read with Section 28(1) of VAT Act. The orders appear to be ex parte in nature.
Learned counsel for the Revenue states that he has no objection if the matter is remanded to the Assessing Authority for deciding the case afresh. Also, the case shall be decided on merits. Also, during pendency of the case, no coercive steps shall be taken against the petitioner.
Statement accepted and taken on record. However, having heard learned counsel for the Patna High Court CWJC No.3357 of 2022 dt.28-02-2022 3/6 parties as also perused the record made available, we are of the considered view that this Court, notwithstanding the statutory remedy, is not precluded from interfering where, ex facie, we form an opinion that the order is bad in law. This we say so, for two reasons- (a) violation of principles of natural justice, i.e. Fair opportunity of hearing. No sufficient time was afforded to the petitioner to represent his case; (b) order passed ex parte in nature, does not assign any reasons sufficient enough even decipherable from the record, as to how the officer could determine the amount due and payable by the assessee. The order, ex parte in nature, passed in violation of the principles of natural justice, entails civil consequences. We also find the authorities not to have adjudicated the matter on the attending facts and circumstances. All issues of fact and law ought to have been dealt with, even if the proceedings were to be ex parte in nature. As such, we dispose of the present writ petition in the following mutually agreeable terms:
(a) We quash and set aside the impugned order dated 11.06.2015 passed by the Additional Commissioner of State Tax Nawada Division, Nawada (Annexure-9) as also the order dated 11.06.2015 passed by the Additional Commissioner of State Tax Nawada Division, Nawada in Case No. 28(1), Patna High Court CWJC No.3357 of 2022 dt.28-02-2022 4/6 81(ET)/2015-16 for the assessment year 2013-14 under Section 8 E.T. read with Section 28(1) of VAT Act;
(b) Further the petitioner undertakes to deposit twenty per cent of the amount of the demand raised before the Assessing Officer. This shall be done within four weeks;
(c) This deposit shall be without prejudice to the respective rights and contention of the parties and subject to the order passed by the Assessing Officer. However, if it is ultimately found that the petitioner's deposit is in excess, the same shall be refunded within two months from the date of passing of the order;
(d) We also direct for de-freezing/de-attaching of the bank account(s) of the writ-petitioner, if attached in reference to the proceedings, subject matter of present petition. This shall be done immediately;
(e) Petitioner undertakes to appear before the Assessing Authority on 28th of March, 2022 at 10:30 A.M., if possible through digital mode;
(f) The Assessing Authority shall decide the case on merits after complying with the principles of natural justice;
(g) Opportunity of hearing shall be afforded to the parties to place on record all essential documents and Patna High Court CWJC No.3357 of 2022 dt.28-02-2022 5/6 materials, if so required and desired;
(h) During pendency of the case, no coercive steps shall be taken against the petitioner.
(i) The Assessing Authority shall pass a fresh order only after affording adequate opportunity to all concerned, including the writ petitioner;
(j) Petitioner through learned counsel undertakes to fully cooperate in such proceedings and not take unnecessary adjournment;
(k) The Assessing Authority shall decide the case on merits expeditiously, preferably within a period of two months from the date of appearance of the petitioner;
(l) The Assessing Authority shall pass a speaking order assigning reasons, copy whereof shall be supplied to the parties;
(m) Liberty reserved to the petitioner to challenge the order, if required and desired;
(n) Equally, liberty reserved to the parties to take recourse to such other remedies as are otherwise available in accordance with law;
(o) We are hopeful that as and when petitioner takes recourse to such remedies, before the appropriate forum, Patna High Court CWJC No.3357 of 2022 dt.28-02-2022 6/6 the same shall be dealt with, in accordance with law, with a reasonable dispatch;
(p) We have not expressed any opinion on merits and all issues are left open;
(q) If possible, proceedings during the time of current Pandemic [Covid-19] be conducted through digital mode;
The instant petition stands disposed of in the aforesaid terms.
Interlocutory Application(s), if any, stands disposed of. Learned counsel for the respondents undertakes to communicate the order to the appropriate authority through electronic mode.
(Sanjay Karol, CJ) ( S. Kumar, J) K.C.Jha/-DKS AFR/NAFR CAV DATE Uploading Date 02.03.2022 Transmission Date