M/S Manikant Singh vs The State Of Bihar Through The ...
2021 Latest Caselaw 2900 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.8382 of 2021
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M/s Manikant Singh a partnership firm having its place of business at 5, 31, JP Nagar, Behind Circuit House, Purnea - 854301, Through one of its partner namely Kumar Sanjiv male aged about 50 Years son of Manikant Singh resident of JP Nagar, Behind Circuit House, Purnea - 854301 (October 2018 To March 2019)

... ... Petitioner/s

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 (Appeal) Purnea Division, Purnea.

3. The Joint Commissioner Of State Taxes, Purnea Circle, Purnea.

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

For the Petitioner/s : Mr.Gautam Kumar Kejriwal, Advocate Mr. Alok Kumar Jha, Advocate For the Respondent/s : Mr. Pawan Kumar, AC to AG ====================================================== 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

Petitioner has prayed for the following relief(s):

"a) For issuance of a writ in the nature of certiorari for quashing of an appellate order dated 13.02.2021 issued vide memo number 346 Purnea and its communication in form GST APL- 02 dated 13.02.2021 issued by the respondent number 2 Patna High Court CWJC No.8382 of 2021 dt.01-07-2021

whereby the appeal preferred by the petitioner against the order dated 12.05.2020 and summary of order in form GST DRC-08 dated 01.07.2020 passed by the respondent No. 3 under section 73 of the Bihar Goods And Services Tax Act 2017 (hereinafter referred to as the Bihar act 2017 for short) has been rejected;

b) For issuance of a writ in the nature of certiorari for quashing of the order dated 11.02.2020 and summary of the order issued in form GST-DRC 07 dated 13.02.2020 and the rectified order 12.05.2020 and summary of order in form GST DRC 08 dated 01.07.2020 passed and issued by the respondent No. 3 whereby liability of tax and interest has been imposed in a proceeding under section 73 of the Bihar Act 2017;

c) For further restraining the respondents from making recovery of the amount of tax and interest imposed and raised in terms of the impugned order dated 12.05.2020 passed by the respondent number 3;

d) For holding and a declaration that the impugned order dated 13.02.2021 issued vide memo number 346 Purnea by the respondent number 2 as first appellate authority is highly cryptic, non-speaking and in teeth of section 107 of the Bihar act 2017:

e) 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

dated 13.02.2021 passed by the Respondent No. 2 namely the Patna High Court CWJC No.8382 of 2021 dt.01-07-2021

Additional Commissioner of State Taxes (Appeal), Purnea

Division, Purnea in Appeal Case No. (ARN)

AD1002210022001, the appeal of the petitioner against the

order dated 11.02.2020 rectified order dated 12.05.2020 passed

by Respondent No. 3, namely Joint Commissioner of State

Taxes, Purnea Circle, Purnea, under Section 73 of the Bihar

Act, 2017 and summary of order in Form GST DRC-07 dated

13.02.2020 and in Form GST DRC-08 dated 01.07.2020, for

the tax period 01.10.2018 to 31.03.2019, 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.

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 Patna High Court CWJC No.8382 of 2021 dt.01-07-2021

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

13.02.2021 passed by the Respondent No. 2 namely the

Additional Commissioner of State Taxes (Appeal), Purnea

Division, Purnea in Appeal Case No. (ARN)

AD1002210022001; order dated 11.02.2020, rectified order

dated 12.05.2020 passed by Respondent No. 3, namely Joint

Commissioner of State Taxes, Purnea Circle, Purnea, under

Section 73 of the Bihar Act, 2017 and summary of order in

Form GST DRC-07 dated 13.02.2020 and in Form GST DRC-

08 dated 01.07.2020;

Patna High Court CWJC No.8382 of 2021 dt.01-07-2021

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

through digital mode;

Patna High Court CWJC No.8382 of 2021 dt.01-07-2021

(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

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 Patna High Court CWJC No.8382 of 2021 dt.01-07-2021

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 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