Basanta Kumar Jena vs The State Of Bihar
2021 Latest Caselaw 2946 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.2168 of 2021
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Basanta Kumar Jena, Son of Keshah Charan Jena Resident of At- Shyamgudia, PO-Bagada. Dist-Kendrapara, Odisha-754212, the Authorised officer of M/s Swastika Steel and Allied Products (P) LTD., a Company Incorporated Under the Companies Act, 1956 having its registered office at 117A, Chittaranjan Avenue, Police Station Jorasanho, District Kolhata (West Bengal).

... ... Petitioner/s Versus

1. The State of Bihar through the Secretary-Cum-Commissioner of State Tax, Bihar having its Office at Vikas Bhawan, Bailey Road, Patna.

2. The Additional Commissioner of State Taxes Appeal), Tirhut Divisional, Muzaffarpur.

3. The Joint Commissioner of State Tax, Bettiah Circle, Bettiah.

4. Then Assistant Commissioner of State Tax, Bettiah Circle, Bettiah.

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

For the Petitioner/s : Mr.Parijat Saurav, Advocate For the Respondent/s : Mr. Vikash Kumar, SC 11 For the Union of India : Dr. K.N.Singh, A.S.G.

Mr. Anshuman Singh, Sr. SC, CGST & CX ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 02-07-2021

Our attention is invited to the Circular dated 11th

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.

Patna High Court CWJC No.2168 of 2021 dt.02-07-2021

In view of the same, Union of India be

impleaded as Party Respondent No. 5.

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 issuance of a writ in the nature of Certiorari or any other appropriate writ or order for quashing of order-in-appeal dated 11/02/2020 passed by the respondent no. 2, the Additional Commissioner of State Taxes (Appeal), Tirhut Division, Muzaffarpur, whereby the appeal of the petitioner was dismissed only on the ground of "delay in submission of Appeal" whereas the delay in filing of the appeal was because of the technical flaw and error in the GSTN portal of the respondent department which did not allow the temporary registered dealer including the petition to file appeal and the delay is not attributable to the petitioner, and further be pleased to quash the order-in-original no. 27/19- 20 passed by the respondent no. 3 contained in Form GST MOV-07 dated 09/05/2019 lelying taxes and penalty as per Section 129(1)(a) of the Patna High Court CWJC No.2168 of 2021 dt.02-07-2021

CGST Act and Bihar GST Act, tax amount (@ 18%) being Rs. 2,59,594.20/- and the penalty being Rs.2,59,594.20/-, total Rs.5,19,188.40/- under the provisions of the CGST Act and BGST Act and the consequential demand issued in Form GST DRC-07, by complete bypassing the provisions of IGST Act and hence the order imposing taxes and penalty are wholly illegal and perverse.

ii) For issuance of a writ in the nature of Mandamus or any other appropriate writ or order for directing the respondent authorities to refund the aforesaid sum of Rs.5,19,188.40/- which the petitioner had to pay under protest in order to get the vehicle and the goods released.

iii) In alternate, be pleased to remand the appeal of the petitioner to the respondent no. 2, the Additional Commissioner of State Taxes (Appeal), Tirhut Division, Muzaffarpur to decide the appeal of the petitioner on merits, after quashing the order-in-appeal dated 11/02/2020 passed by the respondent no. 2.

iv) For issuance of any other appropriate writ, order or direction which Your Lordships may deem fit and proper in the facts and circumstances of the case."

It is brought to our notice that vide impugned

order dated 11.02.2020 passed by the Respondent No. 2 namely Patna High Court CWJC No.2168 of 2021 dt.02-07-2021

The Additional Commissioner of State Tax (Appeal), Tirhut

Division, Muzaffarpur passed in GST/Temp ID/UIN

101900000548TMP, the appeal of the petitioner against the

order-in-original no. 27/19-20 passed by the respondent no. 3,

namely the Joint Commissioner of State Tax, Bettiah Circle,

Bettiah contained in Form GST MOV -07 dated 09.05.2019, 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 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 Patna High Court CWJC No.2168 of 2021 dt.02-07-2021

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

11.02.2020 passed by the Respondent No. 2 namely The

Additional Commissioner of State Tax (Appeal), Tirhut Division,

Muzaffarpur passed in GST/Temp ID/UIN 101900000548TMP,

and order-in-original no. 27/19-20 passed by the respondent no. 3,

namely the Joint Commissioner of State Tax, Bettiah Circle,

Bettiah contained in Form GST MOV -07 dated 09.05.2019;

(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 Patna High Court CWJC No.2168 of 2021 dt.02-07-2021

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;

(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 Patna High Court CWJC No.2168 of 2021 dt.02-07-2021

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;

(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 Patna High Court CWJC No.2168 of 2021 dt.02-07-2021

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