Chunnilal Megamart Private Ltd vs The State Of Bihar
2021 Latest Caselaw 2904 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
           Civil Writ Jurisdiction Case No. 7370 of 2021
======================================================

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

For the Petitioner/s : Mr. Gautam Kumar Kejriwal, Advocate Mr. Alok Kumar Jha, Advocate Mr. Atal Bihari Pandey, Advocate For the Respondent/s : Mr. Vivek Prasad, G.P. 7 Dr. K.N. Singh, A.S.G.

Mr. Anshuman Singh, Advocate

====================================================== 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 Patna High Court CWJC No. 7370 of 2021 dt. 01-07-2021

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. 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): Patna High Court CWJC No. 7370 of 2021 dt. 01-07-2021

Patna High Court CWJC No. 7370 of 2021 dt. 01-07-2021

It is brought to our notice that vide impugned order

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

3 namely Additional Commissioner, of State Taxes

(Appeal), Central Division, Patna, in Appeal Case No.

AD100221002348Z for the period 2018-19, the order

(Annexure-6/A) dated 12th of February, 2021 passed in

Form GST APL-02, in GSTIN/Temp ID/UIN

10AAECC3515D1ZJ, the appeal of the petitioner against

the order dated 17.03.2020 passed by the Respondent No.

3 namely the Assistant Commissioner of State Taxes,

Special Circle, Patna, in Reference No.

ZA100320018957X and Summary of Order in Form GST

DRC-07 (Annexure-2/A) dated 17th of March, 2020, 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 Patna High Court CWJC No. 7370 of 2021 dt. 01-07-2021

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

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: Patna High Court CWJC No. 7370 of 2021 dt. 01-07-2021

(a) We quash and set aside the impugned order

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

3 namely Additional Commissioner, of State Taxes

(Appeal), Central Division, Patna, in Appeal Case No.

AD100221002348Z for the period 2018-19, the order

(Annexure-6/A) dated 12th of February, 2021 passed in

Form GST APL-02, in GSTIN/Temp ID/UIN

10AAECC3515D1ZJ, the order dated 17.03.2020 passed

by the Respondent No. 3 namely the Assistant

Commissioner of State Taxes, Special Circle, Patna, in

Reference No. ZA100320018957X and Summary of Order

in Form GST DRC-07 (Annexure-2/A) dated 17 th of

March, 2020;

(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 Patna High Court CWJC No. 7370 of 2021 dt. 01-07-2021

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;

(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; Patna High Court CWJC No. 7370 of 2021 dt. 01-07-2021

(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 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;

Patna High Court CWJC No. 7370 of 2021 dt. 01-07-2021

(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