Sohan Rai vs The State Of Bihar
2021 Latest Caselaw 2895 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
           Civil Writ Jurisdiction Case No. 8623 of 2021
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Sohan Rai, aged about 57 years (male), son of Baleshwar Rai resident of Ward No. 6, Near Middle School, P.O. Asha Parari, Gayaghat, P.S. Simari, District Buxar.

.......... Petitioner Versus

1. The State of Bihar through the Principal Secretary cum Commissioner, Department of State Taxes, Government of Bihar,Patna.

2. The Additional Commissioner of State Taxes (Appeals), Patna West division, Patna.

3. The Assistant Commissioner of State Taxes, Buxar Circle, Buxar .

............... Respondents

====================================================== Appearance :

For the Petitioner/s : Mr. Suraj Samdarshi, Advocate Mr. Avinash Shekhar, Advocate Mr. Virendra Kumar Ray, Advocate For the Respondent/s : Mr. Lalit Kishore, A.G. For the Union of India : Dr. K.N. Singh, Addl. S.G.

Mr. Anshuman Singh, Sr. S.C., CGST & CX ====================================================== 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 : 01-07-2021

Our attention is invited to the Circular dated 11 th

of August, 2020, issued by the Government of India, Ministry

of Finance, Department of Revenue (State Taxes-I Section),

and Circular dated 27th of October, 2020, issued by the Patna High Court CWJC No. 8623 of 2021 dt. 01-07-2021

Government of India, Ministry of Finance, Department of

Revenue (Central Board of Indirect taxes & Customs) Legal

Cell, copy whereof is taken on record.

In view of the same, Union of India be impleaded

as Party Respondent No. 4.

Registry to make necessary correction, both on the

digital as also the hard file.

Dr. K.N. Singh, learned Additional Solicitor

General and Shri Anshuman Singh, Sr. S.C., CGST & CX

enter appearance on behalf of the newly added respondents.

Petitioner has prayed for the following relief(s):

"a) For issuance of a writ in the nature of certiorari for quashing of the acknowledgement contained in form GST APL - 02 dated 11 . 02. 2021 issued under rule 108 (3) of the Bihar Goods and Services Tax Rules 2017 (hereinafter referred to as the "Bihar Rules 2017") by the Respondent No. 2 whereby the well founded appeal of petitioner against the order dated 06.03.2020 passed by the Respondent No. 3 has been rejected, on wholly erroneous grounds and without considering the case of the petitioner.

b) For issuance a further writ in the nature of certiorari for quashing of ex-parte order dated 06.03.2020 and the summary of order issued in form GST DRC - 07 dated 06.03.2020 passed and issued by the Respondent No. 3 under section 74 (1) of the Patna High Court CWJC No. 8623 of 2021 dt. 01-07-2021

Bihar Goods and Service Tax Act, 2017 (hereinafter referred to as the "Bihar Act 2017") read with rule 142 (5) of the Bihar Rules 2017;

c) For holding that the order dated 11.02.2021 passed by the Respondent no 2 rejecting the appeal of the petitioner on the ground of delay is bad in law considering the COVID 19 pandemic and the orders of this Hon'ble Court in CWJC No. 5633 of 2020.

d) For holding and a declaration that the impugned order dated 06.03.2020 passed by the respondent No. 3 is highly cryptic, nonspeaking and based on complete non-application of mind to the credit balance in the electronic credit Ledger and the figures of taxable outward supplies admitted and disclosed in the returns for the period in question.

e) For issuance of a writ or order or direction restraining the Respondent No. 3 from making any coercive recovery of the amount in demand, tax, interest and penalty as contained in the order dated 06.03.2020 during the pendency of the present writ application.

f) For holding and a declaration that the appeal preferred by the petitioner against the order dated 06.03.2020 passed by the Respondent No. 3 was well within limitation in light of the 4 orders dated 30.04.2020 and 18.05.2020 passed by full bench of this Hon'ble Court in CWJC No. 5633 of 2020 in view of the pandemic having arisen out of Covid 19.

g) For grant of any other relief or reliefs to which the petitioner is found entitled in the facts and Patna High Court CWJC No. 8623 of 2021 dt. 01-07-2021

circumstances of this case."

It is brought to our notice that vide impugned order

dated 11th of February, 2021 passed by the Respondent No.

2 namely Additional Commissioner of State Taxes

(Appeals), Patna West, Division, Patna in Reference No.

ZD1002210084862 (Annexure-6), the appeal of the

petitioner against the order dated 6th of March, 2020

passed by the Respondent No. 3 namely Assistant

Commissioner of State Taxes, Buxar Circle, Buxar, in

GSTIN-10AOFPR0913Q1ZW and Summary of Order

dated 6th of March, 2020 in Reference No.

ZA1003200078936 has been rejected merely on the

grounds of being barred by limitation. Both the orders

were 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. Patna High Court CWJC No. 8623 of 2021 dt. 01-07-2021

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 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 11th of February, 2021 passed by the Respondent No.

2 namely Additional Commissioner of State Taxes

(Appeals), Patna West, Division, Patna in Reference No.

ZD1002210084862 (Annexure-6), the order dated 6th of

March, 2020 passed by the Respondent No. 3 namely Patna High Court CWJC No. 8623 of 2021 dt. 01-07-2021

Assistant Commissioner of State Taxes, Buxar Circle,

Buxar, in GSTIN-10AOFPR0913Q1ZW and Summary of

Order dated 6th of March, 2020 in Reference No.

ZA1003200078936;

(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 Patna High Court CWJC No. 8623 of 2021 dt. 01-07-2021

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 9th of August, 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, 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 Patna High Court CWJC No. 8623 of 2021 dt. 01-07-2021

merits expeditiously, preferably within a period of two

months from the date of appearance of the petitioner;

(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

aforesaid terms.

Interlocutory Application(s), if any, also stands

disposed of.

Learned counsel for the respondents undertakes Patna High Court CWJC No. 8623 of 2021 dt. 01-07-2021

to communicate the order to the appropriate authority

through electronic mode.

(Sanjay Karol, CJ)

(S. Kumar, J)

Sujit/PKP-

AFR/NAFR
CAV DATE
Uploading Date         07.07.2021
Transmission Date