Gajmukh Trading vs State Of Bihar
2021 Latest Caselaw 4319 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.14234 of 2021
     ======================================================

Gajmukh Trading a proprietory concern having its office at Ramdhan Market, Khazanchi Road, Patna through its proprietor, Ganesh Kumar Khemka (Male) (aged about 55 years) son of Late. Prahalad Ray Khemka resident of Flat No. 46, Saraswati Apartment, Block B, S.P. Verma Road, P.S. - Kotwali, District - Patna.

... ... 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), East Division, Patna.

3. Joint Commissioner of State Tax, Kadam Kuan, Patna.

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

For the Petitioner/s : Mr.D.V.Pathy, 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)

(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 order dated 19.03.2021 passed by the respondent no.2 (as contained in in Annexure-9) dismissing the appeal on the solitary ground of delay in filing of the appeal be quashed.

ii) the order dated 12.06.2019 passed by the respondent no.3 (as contained in Patna High Court CWJC No.14234 of 2021 dt.26-08-2021

Annexure-7) raising a demand of tax, interest and penalty totalling र 21,08,789 ex parte and without giving any reason therefor be quashed.

iii) the respondent no.3 be directed to allow the claim of transitional credit accrued in terms of section 140 of the CGST/BGST Act, 2017.

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 19.03.2021 passed by the Respondent No. 2 namely the Additional Commissioner of State Tax (Appeal), East Division, Patna, in Appeal Reference No.ZD1003210039419, the appeal of the petitioner against the order dated 12.06.2029 passed by Respondent No. 3, namely Joint Commissioner of State Tax, Kadamkuan, Patna in Reference No. ZA10061900040BX for the tax period July, 2017 to March, 2018 in Form GST DRC-07, has been rejected merely on the grounds of being barred by limitation.

Both the orders are ex parte in nature.

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. Patna High Court CWJC No.14234 of 2021 dt.26-08-2021

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

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

19.03.2021 passed by the Respondent No. 2 namely the Additional

Commissioner of State Tax (Appeal), East Division, Patna, in

Appeal Reference No.ZD1003210039419 and the order dated

12.06.2029 passed by Respondent No. 3, namely Joint

Commissioner of State Tax, Kadamkuan, Patna in Reference No.

ZA10061900040BX for the tax period July, 2017 to March, 2018

in Form GST DRC-07;

Patna High Court CWJC No.14234 of 2021 dt.26-08-2021

(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.

(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 Patna High Court CWJC No.14234 of 2021 dt.26-08-2021

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,

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 Patna High Court CWJC No.14234 of 2021 dt.26-08-2021

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

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