Mcl- Bel- Bihar (Jv) vs The State Of Bihar
2021 Latest Caselaw 2906 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.5932 of 2021
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MCL- BEL- Bihar (JV) A Joint Venture having its registered office at Monte Carlo House, Near Sindhu Bhawan Road, Bodakdev, Ahmedabad (Gujarat)- 380058 and local office in the State of Bihar Through its authorised signatory namely Manish Kumar, Manu Bhai Mevada male aged about 38 years son of Manu Bhai Mevada resident of Limbadi Vas, Brahman Wada, Mehsana, Gujarat- 384215 (Financial Year 2016-2017).

... ... Petitioner/s

Versus

1. The State of Bihar Through the Principal Secretary Cum Commissioner Department of State Taxes, New Secretariat, Bailey Road, Patna.

2. The Joint Commissioner of State Taxes Patliputra State Tax Circle, Patna.

3. The Assistant Commissioner of State Taxes Patliputra State Tax Circle, Patna.

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

For the Petitioner/s : Mr.Gautam Kumar Kejriwal, Advocate Mr. Alok Kumar Jha, Advocate For the Respondent/s : Mr. Vivek Prasad, GP 7 ====================================================== 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 the order dated 06.03.2020 passed by the respondent No. 3 under section 41(6) of the Bihar Value Added Tax Act, 2005 (hereinafter referred to as "the act" for short) for the financial year 2016-2017 on grounds of Patna High Court CWJC No.5932 of 2021 dt.01-07-2021

the same being ex-parte and as such violative of the principles of natural justice;

(b) For issuance of a writ in the nature of certiorari for quashing of the order dated 12.03.2020 passed by the respondent No. 3 whereby the petitioner's plea has been rejected without any application of mind;

(c) For further holding and a declaration that in light of the principle settled by the apex court in the matter of 2008-9-SCC-191 (State of A.P. Vs. L & T) the relationship between the employer Department, the petitioner (main contractor) and the subcontractor will constitute one taxable event and the petitioner having already been subjected to advance tax deduction at source in terms of section 41 of the act by the employer Department in the State of Bihar, the impugned demand of penalty imposed under section 41(6) of the act is misconceived and directly in teeth of the said proposition of law settled by the apex court;

(d) For further holding and a declaration that in an execution of the work contract by a subcontractor working under the contract terms with the main contractor any deduction of tax from the bills of subcontractor would constitute double taxation impermissible in law and violative of Article 265 of the Constitution of India;

(e) For further issuance of a writ or order or direction restraining the respondents from recovery of the penalty determined in terms of the impugned order dated 06.03.2020 from the petitioner;

(f) for grant of any other relief or reliefs to which the petitioner is found entitled to in the facts and circumstances of the case.

It is brought to our notice that vide impugned order Patna High Court CWJC No.5932 of 2021 dt.01-07-2021

dated 06.03.2020 passed by the Respondent No. 3 namely the

Assistant Commissioner of State Taxes, Patliputra State Tax

Circle, Patna in Case No. 10051406024, under Section 41(6)

of Bihar Value Added Tax Act, 2005 for the period 2016-2017

on the ground is ex parte in nature and also vide order dated

12.03.2020, passed by the same authority the petitioner's plea

has been rejected without any application of mind.

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 Patna High Court CWJC No.5932 of 2021 dt.01-07-2021

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

06.03.2020 passed by the Respondent No. 3 namely the

Assistant Commissioner of State Taxes, Patliputra State Tax

Circle, Patna in Case No. 10051406024, under Section 41(6)

of Bihar Value Added Tax Act, 2005 for the period 2016-2017

and order dated 12.03.2020, passed by the same authority;

(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 Rs. 50,00,000/- (fifty lacs) 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 Patna High Court CWJC No.5932 of 2021 dt.01-07-2021

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;

(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 Patna High Court CWJC No.5932 of 2021 dt.01-07-2021

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;

(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 Patna High Court CWJC No.5932 of 2021 dt.01-07-2021

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