Vivek Kumar vs The State Of Bihar
2021 Latest Caselaw 2914 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
           Civil Writ Jurisdiction Case No. 8888 of 2021
======================================================

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

For the Petitioner/s : Mr. Alok Kumar @ Alok Kr Shahi, Advocate Mr. Arvind Kumar, Advocate For the Respondent/s : Mr. Vikash Kumar, S.C. 11 Mr. Apurv Harsh, Advocate (SBI) For the Union of India : Dr. K.N.Singh, A.S.G.

Mr. Anshuman Singh, Sr. S.C., 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 Patna High Court CWJC No. 8888 of 2021 dt. 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

Cell, copy whereof is taken on record.

In view of the same, Union of India be impleaded

as Party Respondent No. 6.

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. 8888 of 2021 dt. 01-07-2021

Petitioner has prayed for quashing of the impugned

order dated 5th of March, 2020 passed by the Respondent

No. 3 namely Assistant Commissioner of State Tax,

Kadamkuan Circle, Patna in Reference No.

ZA1003200048880 as also notice to third person under

Section 79(1)(c) dated 3rd of May, 2020, issued vide Memo

No. 174 dated 11th of January, 2021 by the Respondent No.

2 namely Joint Commissioner of State Tax, Kadamkuan

Circle, Patna. The order appears to be 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, 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, Patna High Court CWJC No. 8888 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

dated 5th of March, 2020 passed by the Respondent No. 3

namely Assistant Commissioner of State Tax, Kadamkuan

Circle, Patna in Reference No. ZA1003200048880 as also

notice to third person under Section 79(1)(c) dated 3rd of

May, 2020, issued vide Memo No. 174 dated 11 th of

January, 2021 by the Respondent No. 2 namely Joint

Commissioner of State Tax, Kadamkuan Circle, Patna;

(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 Patna High Court CWJC No. 8888 of 2021 dt. 01-07-2021

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;

(g) The Assessing Authority shall decide the

case on merits after complying with the principles of

natural justice;

Patna High Court CWJC No. 8888 of 2021 dt. 01-07-2021

(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 recourse to such remedies, before the appropriate

forum, the same shall be dealt with, in accordance with Patna High Court CWJC No. 8888 of 2021 dt. 01-07-2021

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)

Sujit/PKP-

AFR/NAFR
CAV DATE
Uploading Date          06.07.2021
Transmission Date