Patna High Court
Daisy Kumari vs The State Of Bihar And Ors on 4 February, 2021
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.19473 of 2016
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Daisy Kumari, Daughter of Santosh Kumar, Resident of House No. 126, Bag
Dulhan, Hajipur, P.S.- Hajipur, District- Vaishali.
... ... Petitioner/s
Versus
1. The State of Bihar through Principal Secretary, Rural Works Department,
Government of Bihar, Patna
2. The Principal Secretary, Rural Work Department, Government of Bihar,
Patna.
3. The Commissioner-cum-Principal Secretary, Commercial Taxes Department,
Government of Bihar, Patna.
4. The Executive Engineer, Rural Works Department, Works Division, Chapra-
2.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Durga Nand Jha, Advocate
For the Respondent/s : Mr. Vikash Kumar, SC-11
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE S. KUMAR
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 04-02-2021
Petitioner has prayed for the following relief(s):-
"1.(i) Issuance of an appropriate writ in
the nature of Mandamus directing and
commanding the respondents not to make flat
deduction at source of value added tax at the rate
of 8% from the bills of the petitioner relating to
execution of the works contract as the same is
contrary to the provisions of proviso to sub-
section 2 of section 41 of the Bihar Value Added
Tax Act, 2005 as also the Proviso to Sub-rule 2
of Rule 29 of Bihar Value Added Tax Rules,
Patna High Court CWJC No.19473 of 2016 dt.04-02-2021
2005.
(ii) Issuance of further writ in the nature
of Mandamus directing and commanding the
respondents to refund the amount of Tax which
has illegally been deducted from the bills of
petitioner at enhanced rate (effective from
12.8.16) on the entire amount of bills including
the item exempted under Rule 29(2) of the Bihar
Value Added Tax Rules, 2005, without there
being any Authority in law.
(iii) Issuance of an appropriate direction
to re-imburse the excess tax deducted in
pursuant to clause 35 of the Agreement
including 3% excess deducted.
(iv) Issuance of further direction that
excess deducted tax beyond 5% either be re-
imbursed or it be adjusted in due bills to be
submitted by petitioner because flat 8% has been
deducted from total bill of Rs. 26,02,775=00
when it would have been deducted over a sum of
Rs. 9,85,055=00 comes under taxable items out
of total bills of Rs. 26,02,775=00.
(v) Issuance of further direction to
Respondents to follow the provisions of the
Bihar Value Added Tax Act, 2005 and Rules
made there under, as also the Notification dated
22.06.2005.
(vi) Any other relief or reliefs be granted
to petitioner to which she is entitled to in
accordance with law."
The matter was heard for some time.
As prayed for on behalf of both the parties, the present
Patna High Court CWJC No.19473 of 2016 dt.04-02-2021
petition stands disposed of in the following mutually agreeable
terms:
(a) The petitioner shall approach the Assessing Officer
[Deputy Commissioner of Commercial Taxes] on 22 nd of
February, 2021 at 10:30 A.M. along with all
objections/documents and materials in support of his case;
(b) an endeavour shall be made by the Assessing
Officer to resolve the issue raised by the petitioner, subject
matter of the present petition, accounting for all the materials, as
per the statutory provisions;
(c) if possible, the petitioner shall be allowed to file a
revised return;
(d) Shri Vikash Kumar, learned Standing Counsel No.
11 states that an endeavour of resolving the issue shall be taken
by the Assessing Officer;
(e) as and when such steps are taken by the assessee,
the decision thereupon shall be taken at the earliest and not later
than four weeks thereafter;
(f) independent thereof, the Assessing Officer shall try
to resolve all the pending issues inter se the parties so as to build
mutual trust, faith and confidence in the mind of the petitioner;
(g) liberty is reserved to the petitioner to take recourse
Patna High Court CWJC No.19473 of 2016 dt.04-02-2021
to such alternative remedies as are otherwise available in
accordance with law, including filing a fresh petition on the
same and subsequent cause of action;
(h) we are hopeful that as and when petitioner takes
recourse to such remedies, as are otherwise available in law,
before the appropriate forum, the same shall be dealt with, in
accordance with law and with reasonable dispatch;
(i) Needless to add, while considering the case of the
petitioner, principles of natural justice shall be followed and due
opportunity of hearing afforded to the parties;
(j) the issue as to whether any amount stood deducted
or deposited with any one of the authorities shall also be
examined by the Assessing Officer.
(k) we have not expressed any pinion on merits. All
issues are left open;
(l) The proceedings, during the time of current
Pandemic- Covid-19 shall be conducted through digital mode,
unless the parties otherwise mutually agree to meet in person i.e.
physical mode.
The petition stands disposed of in the aforesaid terms.
Interlocutory Application(s), if any, also stands
disposed of.
Patna High Court CWJC No.19473 of 2016 dt.04-02-2021
Shri Vikash Kumar, learned Standing Counsel No. 11
undertakes to communicate the order to the Assessing Officer
within next two working days.
(Sanjay Karol, CJ)
(S. Kumar, J)
Amrendra/P.K.P
AFR/NAFR
CAV DATE
Uploading Date 05.02.2021
Transmission Date
