Shrimohan Mishra vs The State Of Bihar
2021 Latest Caselaw 3948 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                  Civil Writ Jurisdiction Case No.13386 of 2021
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Shrimohan Mishra Son of Shiv Shankar Mishra Resident of Village and Post Office- Kaithwar, Police Station- Sakatpur, Circle- Tardih, District- Darbhanga, Pin.- 847204.

... ... Petitioner/s Versus

1. The State of Bihar Through its Chief Secretary, Bihar, Patna.

2. The Principal Secretary Department of Commercial Tax, Government of Bihar, Patna.

3. The Commissioner Commercial Tax, Government of Bihar, Patna.

4. The Joint Commissioner Commercial Tax Department, Darbhanga Circle, Darbhanga.

5. The Deputy Commissioner Commercial Tax, Darbhanga Circle, Darbhanga.

6. The Collector Darbhanga, District- Darbhanga.

7. The Circle Officer Tardih, Darbhanga.

8. The Certificate Officer Mines and Mineral Department, Collectorate Darbhanga.

9. The Secretary Department of Mines and Minerals, Government of Bihar, Patna.

10. The Assistant Mines Officer Darbhanga.

11. The Inspector Mines Department, Darbhanga.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr.Kaushalesh Choudhary, 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 MR. JUSTICE S. KUMAR)

=============================================== (The proceedings of the Court are being conducted by Hon'ble the Chief Justice/Hon'ble Judges through Video Conferencing from their residential offices/residences. Also the Advocates and the Staffs joined the proceedings through Video Conferencing from their residences/offices.)

Date : 04-08-2021

Petitioner has prayed for the following relief(s): Patna High Court CWJC No.13386 of 2021 dt.04-08-2021

Patna High Court CWJC No.13386 of 2021 dt.04-08-2021

The instant petition has been filed for quashing of the ex-

parte order dated 02.07.2015 passed by the Assistant

Commissioner of Commercial Tax, Darbhanga Circle, Darbhanga

as also the entire proceeding initiated vide Case Nos.

28(1)351/2015-16, 28(1)352/2015-16, 31(1)375/2015-16 and

31(1)376/2015-16, pending before the Deputy Commissioner,

Commercial Taxes, Darbhanga Circle, Darbhanga.

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 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) Patna High Court CWJC No.13386 of 2021 dt.04-08-2021

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 sufficient reasons 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. As

such, on this short ground alone, we dispose of the present writ

petition in the following mutually agreeable terms:

(a) We quash and set aside the ex-parte order dated

02.07.2015 passed by the Assistant Commissioner of

Commercial Tax, Darbhanga Circle, Darbhanga as also the

entire proceeding initiated vide Case Nos. 28(1)351/2015-16,

28(1)352/2015-16, 31(1)375/2015-16 and 31(1)376/2015-16,

pending before the Deputy Commissioner, Commercial Taxes,

Darbhanga Circle, Darbhanga;

(b) 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 Patna High Court CWJC No.13386 of 2021 dt.04-08-2021

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 after deposit of 20%.

(e) Petitioner undertakes to appear before the

Assessing Authority on 20th September, 2021 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

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 Patna High Court CWJC No.13386 of 2021 dt.04-08-2021

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,

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 sands disposed of in the Patna High Court CWJC No.13386 of 2021 dt.04-08-2021

aforesaid terms.

Interlocutory Application(s), if any, also 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)

Ashwini/Sujit/-

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