Rambabu Singh vs State Of Bihar Through The ...
2021 Latest Caselaw 4317 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.14475 of 2021
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Rambabu Singh, a proprietary concern having its office at Basauli, Basauli, Muzaffarpur, through its proprietor, Rambabu Singh, (Male) (aged about 49 years), Son of Late Mahanth Singh, resident of Ward No. 2, East of Basauli Chowk, Basauli, Muzaffarpur, P.S. Kurhani, District - Muzaffarpur, Bihar.

... ... Petitioner/s

Versus

1. State of Bihar through the Commissioner of State Tax, having its office at Vikas Bhawan Bailey Road, Patna.

2. Addl. Commissioner of State Tax (Appeal), Tirhut Division, Muzaffarpur.

3. Deputy Commissioner of State Tax, East Circle, Muzaffarpur.

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

For the Petitioner/s : Mr.D.V.Pathy, Advocate For the Respondent/s : Mr.Vivek Prasad ( GP 7 ) ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

(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 : 26-08-2021

Petitioner has prayed for the following relief(s):

"i) the notice dated 03.02.2020 (as contained in in Annexure-1) issued by the respondent no.2 quantifying tax, interest and penalty amounting to र 9,39,808 under Section 74 of the Bihar Goods and Services Tax Act, 2017 (hereinafter called the BGST Act) for the period April 2019 to September 2019 be quashed.

ii) the notice dated 03.02.2020 (as contained in Patna High Court CWJC No.14475 of 2021 dt.26-08-2021

Annexure-2) issued by the respondent no.2 quantifying tax, interest and penalty amounting to र 9,39,808 under the BGST Act for the period April 2019 to September 2019 in Form DRC-01 be quashed.

iii) the order dated 05.03.2020 (as contained in in Annexure 4) passed by the respondent no.2 quantifying tax, interest and penalty amounting to र 8,39,164 under the BGST Act for the period April 2019 to September 2019 in Form GST DRC - 07 without passing a speaking order be quashed.

iv) the order dated 05.03.2020 (as contained in Annexure-5) passed by the respondent no.2 quantifying tax, interest and penalty amounting to र 8,39,164 under the BGST Act for the period April 2019 to September 2019 in 74(9) of the BGST Act 2017 without passing a speaking order be quashed.

v) the order dated 28.12.2020 (as contained in Annexure -7) passed by the respondent no. 2 dismissing the appeal in liminie on the solitary ground of delay in filing the appeal be quashed.

vi) for granting any other relief (s) to which the petitioner is otherwise found entitled to."

It is brought to our notice that vide impugned order dated 28.12.2020 passed by the Respondent No. 2 namely the Additional Commissioner of State Tax (Appeal), Tirhut Division, Muzaffarpur, in Appeal Case No. GST/MZ-46/2020-21, the appeal of the petitioner against the order dated 05.03.2020 passed by Respondent No. 3, namely Deputy Commissioner of State Tax, Patna High Court CWJC No.14475 of 2021 dt.26-08-2021

East Circle, Muzaffarpur in GSTIN 10BBGPS6340R1Z9, under Section 74(9) of GST Act, 2017 pursuant to notice dated 03.02.2020 issued under Section 74 of the Bihar Goods and Service Tax Act, 2017 Act, for the tax period April 2019- September, 2019 in Form GST DRC-07, has been rejected merely on the grounds of being barred by limitation.

In our considered view, the delay stands sufficiently

explained on account of COVID restrictions.

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)

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 Patna High Court CWJC No.14475 of 2021 dt.26-08-2021

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 impugned order dated

28.12.2020 passed by the Respondent No. 2 namely the Additional

Commissioner of State Tax (Appeal), Tirhut Division,

Muzaffarpur, in Appeal Case No. GST/MZ-46/2020-21; the order

dated 05.03.2020 passed by Respondent No. 3, namely Deputy

Commissioner of State Tax, East Circle, Muzaffarpur in GSTIN

10BBGPS6340R1Z9, under Section 74(9) of GST Act, 2017 and

notice dated 03.02.2020 issued under Section 74 of the Bihar

Goods and Service Tax Act, 2017 Act, for the tax period April

2019-September, 2019 in Form GST DRC-07;

(b) We accept the statement of the petitioner that ten per

cent of the total amount, being condition prerequisite for hearing

of the appeal, already stands deposited. If that were so, well and

good. However, if the amount is not deposited for whatever

reason(s), same shall be done before the next date;

(c) Further the petitioner undertakes to additionally

deposit ten per cent of the amount of the demand raised before

the Assessing Officer. This shall be done within four weeks. Patna High Court CWJC No.14475 of 2021 dt.26-08-2021

(d) 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;

(e) 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.

(f) Petitioner undertakes to appear before the Assessing

Authority on 25th October, 2021 at 10:30 A.M., if possible

through digital mode;

(g) The Assessing Authority shall decide the case on

merits after complying with the principles of natural justice;

(h) Opportunity of hearing shall be afforded to the

parties to place on record all essential documents and

materials, if so required and desired;

(i) During pendency of the case, no coercive steps shall

be taken against the petitioner.

(j) The Assessing Authority shall pass a fresh order

only after affording adequate opportunity to all concerned, Patna High Court CWJC No.14475 of 2021 dt.26-08-2021

including the writ petitioner;

(k) Petitioner through learned counsel undertakes to

fully cooperate in such proceedings and not take unnecessary

adjournment;

(l) 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;

(m) The Assessing Authority shall pass a speaking

order, assigning reasons, copy whereof shall be supplied to the

parties;

(n) Liberty reserved to the petitioner to challenge the

order, if required and desired;

(o) Equally, liberty reserved to the parties to take

recourse to such other remedies as are otherwise available in

accordance with law;

(p) 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;

(q) We have not expressed any opinion on merits and

all issues are left open;

(r) If possible, proceedings during the time of current Patna High Court CWJC No.14475 of 2021 dt.26-08-2021

Pandemic [Covid-19] be conducted through digital mode;

The instant petition sands disposed of in the

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)

K.C.Jha/-

AFR/NAFR
CAV DATE
Uploading Date          01.09.2021
Transmission Date