Sohan Rai vs The State Of Bihar Through The ...
2021 Latest Caselaw 2897 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
               Civil Writ Jurisdiction Case No. 8911 of 2021
======================================================

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. Virendra Kumar Ray, Advocate Mr. Avinash Shekhar, Advocate For the Respondent/s : Mr. Vivek Prasad, G.P. 7 For the Union of India : Dr. K.N.Singh, Addl. S.G.

Mr. Anshuman Singh, Sr. SC, 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

Government of India, Ministry of Finance, Department of

Revenue (Central Board of Indirect taxes & Customs) Legal Patna High Court CWJC No. 8911 of 2021 dt. 01-07-2021

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

(1) of the 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; Patna High Court CWJC No. 8911 of 2021 dt. 01-07-2021

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 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

g) For grant of any other relief or reliefs to which the petitioner is found entitled in the facts and circumstances of this case."

It is brought to our notice that vide impugned order Patna High Court CWJC No. 8911 of 2021 dt. 01-07-2021

11th of February, 2021 passed by Respondent No. 2 namely

The Additional Commissioner of State Taxes (Appeals), Patna

West Division, Patna in GSTIN/Temp ID/UIN

10AOFPR0913Q1ZW (Annexure-6), appeal preferred by the

petitioner against the order dated 6th of March, 2020

(Annexure-3) passed by the Respondent No. 3 namely The

Assistant Commissioner of State Taxes, Buxar Circle, Buxar

and Summary of order in Form GST DRC-07 (Annexure-3/A)

in Reference No. ZA1003200080820, stands dismissed, only

on the ground of delay in submission of appeal. Both the

orders were ex parte in nature.

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, 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, Patna High Court CWJC No. 8911 of 2021 dt. 01-07-2021

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 11th of

February, 2021 passed by Respondent No. 2 namely The

Additional Commissioner of State Taxes (Appeals), Patna

West Division, Patna in GSTIN/Temp ID/UIN

10AOFPR0913Q1ZW (Annexure-6); order dated 6 th of March,

2020 (Annexure-3) passed by the Respondent No. 3 namely

The Assistant Commissioner of State Taxes, Buxar Circle,

Buxar and Summary of order in Form GST DRC-07

(Annexure-3/A) in Reference No. ZA1003200080820;

(b) We accept the statement of the petitioner that 10

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 Patna High Court CWJC No. 8911 of 2021 dt. 01-07-2021

whatever reason(s), same shall be done within a period of

seven days from the date of account being made operational;

(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 a

period of seven days from the date of account being made

operational.

(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) In this view of the matter, 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

Officer on 9th of August, 2021 at 10:30 A.M., if possible

through digital mode;

(g) Opportunity of hearing shall be afforded to the

parties to place on record all essential documents and Patna High Court CWJC No. 8911 of 2021 dt. 01-07-2021

materials, if so required and desired;

(h) The Assessing Officer shall pass a fresh order

only after affording adequate opportunity to all concerned,

including the writ petitioner;

(i) Petitioner through learned counsel undertakes to

fully cooperate in such proceedings and not take

unnecessary adjournment;

(j) The Assessing Officer shall decide the matter on

merits expeditiously, preferably within a period of two

months from the date of appearance of the petitioner;

(k) Liberty reserved to the petitioner to challenge

the order, if required and desired;

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

recourse to such other remedies as are otherwise available

in accordance with law;

(m) 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;

(n) We have not expressed any opinion on merits

and all issues are left open;

(o) If possible, proceedings during the time of Patna High Court CWJC No. 8911 of 2021 dt. 01-07-2021

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)

Sujit/PKP-

AFR/NAFR
CAV DATE
Uploading Date          07.07.2021
Transmission Date