M/S. Sri Gopikrishna ... vs The State Of Bihar Through The ...
2021 Latest Caselaw 2898 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.8664 of 2021
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M/s. Sri Gopikrishna Infrastructure Private Limited having its office at RT- 503, Fifth Floor, Royal Tara Apartment, Survey Mauza, Sheikpura, P.S. Shastri Nagar, Bihar, 800014 through its Authorized Representative, Gottumukkala. Krishna Raju (Male), Aged About 53 Years, S/o Suryanarayan Raju Residing at Flat No. 503, 5th Floor, Royal Tara Apartment, Brahamasthan Gali, Rajabazar, P.S. Shastri Nagar, P.O. Raja bazar, District Patna Bihar, 800014.

... ... Petitioner/s

Versus

1. The State of Bihar through the Commissioner cum Secretary, Commercial Tax Department, Govt. of Bihar, Patna.

2. The Commissioner cum Secretary, Commercial Tax Department, Govt. of Bihar, Patna.

3. Joint Commissioner of State Tax, Patna Central Patna West, Bihar.

4. Additional Commissioner State Tax (Appeals), Central, Patna.

5. Assistant Commissioner of State Tax Patna Central Circle, Patna, Bihar.

6. North Bihar Power Distribution Company Limited, M/s Electrical Circle Saharsa, Aashta Bhawan, first Floor, Sant Nagar, Saharsa Bihar, 852201.

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

For the Petitioner/s : Mr.Y.V. Giri, Sr. Advocate Mr. Brisketu Sharan Pandey, Advocate Mr. Abhishek Kumar, Advocate For the Respondent/s : Mr. Dr. K.N. Singh, ASG Mr. Anshuman Singh, Sr. S.C., CGST & CX 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 : 01-07-2021

Our attention is invited to the Circular dated 11 th of Patna High Court CWJC No.8664 of 2021 dt.01-07-2021

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 Cell, copy whereof is

taken on record.

In view of the same, Union of India be impleaded

as Party Respondent No. 7.

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):

" (i) For issuing a writ of certiorari or any other appropriate writ quashing/ setting aside the order dated 05.03.2020 passed by Respondent No. 4 as well as the best-judgment assessment order dated 11.09.2019 passed under Section 62 of the CGST Act, 2017, for the month of July 2019;

(ii) For issuing a writ of mandamus or any other appropriate writ directing the Respondents not take any coercive action including recovery from bank account and third parties until pendency of the present writ application.

iii) For issuing a writ of mandamus or any other Patna High Court CWJC No.8664 of 2021 dt.01-07-2021

appropriate writ holding that inasmuch as the Petitioner has already filed the return for the month of July 2019 and paid the amounts of CGST and SGST along with interest, which is far in excess of the amounts demanded by the best-judgment assessment order dated 11.09.2019, thus, no further recovery can be made under the said order dated 11.09.2019;

(iv) For passing any such other order/orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."

It is brought to our notice that vide impugned order

dated 05.03.2020 (Annexure-6) passed by Respondent No.

4, namely the Additional Commissioner State Tax

(Appeals), Patna in Appeal Case No. GST/PTC-49/19-20,

the appeal of the petitioner against the order dated

11.09.2019 passed by the Joint Commissioner of State

Tax, Patna Central, Patna West, Bihar in Reference

No.ZA100919006186N 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 Appellate Patna High Court CWJC No.8664 of 2021 dt.01-07-2021

Authority for deciding the appeal afresh. Also, while

considering and deciding the appeal, the ground of delay

shall not be taken into account and the appeal shall be

decided on merits. Also, during pendency of the appeal, no

coercive steps shall be taken against the petitioner.

Statement accepted and taken on record.

Having heard learned counsel for the parties as

also perused the record made available, we dispose of the

present petition in the following mutually agreeable

terms:-

(a) We quash and set aside the impugned order

dated 05.03.2020 (Annexure-6) passed by Respondent No.

4, namely the Additional Commissioner State Tax

(Appeals), Patna in Appeal Case No. GST/PTC-49/19-20,

and order dated 11.09.2019 passed by the Joint

Commissioner of State Tax, Patna Central, Patna West,

Bihar in Reference No.ZA100919006186N;

(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, the appeal shall be decided on Patna High Court CWJC No.8664 of 2021 dt.01-07-2021

merits. However, if the amount is not deposited for

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

date;

(c) This deposit shall be without prejudice to the

respective rights and contention of the parties and

subject to the order passed by the Appellate Authority.

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;

(d) 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.

(e) Petitioner undertakes to appear before the

Appellate Authority i.e. Joint Commissioner of

Commercial Taxes (Appeal), Magadh Division, Gaya on

1st of September, 2021 at 10:30 A.M., if possible through

digital mode;

(f) The Appellate Authority shall condone the

delay in filing the appeal and decide the appeal on

merits after complying with the principles of natural Patna High Court CWJC No.8664 of 2021 dt.01-07-2021

justice;

(g) Opportunity of hearing shall be afforded to

the parties to place on record all essential documents

and materials, if so required and desired;

(h) During pendency of the appeal, no coercive

steps shall be taken against the petitioner.

(i) The Appellate Authority shall pass a fresh

order only after affording adequate opportunity to all

concerned, including the writ petitioner;

(j) Petitioner through learned counsel undertakes to

fully cooperate in such proceedings and not take

unnecessary adjournment;

(k) The Appellate Authority shall decide the appeal

on merits expeditiously, preferably within a period of two

months from the date of appearance of the petitioner;

(l) Liberty reserved to the petitioner to challenge the

order, if required and desired;

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

recourse to such other remedies as are otherwise available

in accordance with law;

(n) We are hopeful that as and when petitioner

takes recourse to such remedies, before the appropriate Patna High Court CWJC No.8664 of 2021 dt.01-07-2021

forum, the same shall be dealt with, in accordance with

law, with a reasonable dispatch;

(o) We have not expressed any opinion on merits

and all issues are left open;

(p) 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          07.07.2021
Transmission Date