Raj Kumar Singh Raja Construction ... vs State Of Bihar
2021 Latest Caselaw 3167 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                  Civil Writ Jurisdiction Case No.11714 of 2021
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Raj Kumar Singh Raja Construction Private Limited a company incorporated

under the Companies Act 1956 having its office at H/O Prem Dhari Singh,

Balipaker, Paliganj, through its Managing Director, Raj Kumar (Male) (aged

about 46 years) son of Prem Dhari Singh, resident of House No. A/16, Bank

of India Colony, Indrapuri, Raja Bazar, Rukanpura, B.V. College, P.S. Shastri

Nagar, Patna, Bihar.

... ... Petitioner/s

Versus

1. State of Bihar through the Commissioner of State Tax, having its office at

Vikas Bhawan Bailey Road, Patna.

2. Addl. Commissioner of State Tax (Appeal), West Division, Patna.

3. Joint Commissioner of State Tax, Danapur Circle, Patna.

... ... Respondent/s

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Appearance :

For the Petitioner/s : Mr.D.V.Pathy, Advocate

Mr. Sadashiv Tiwari, Advocate

Ms. Manju Jha, Advocate

For the Respondent/s : Mr. Vivek Prasad, GP-7

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CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 08-07-2021 Patna High Court CWJC No.11714 of 2021 dt.08-07-2021

Petitioner has prayed for the following relief(s):

"i) the order dated 07.03.2020 (as contained in Annexure-4) for the Tax Period June 2019 passed by the respondent no.3 under section 74 of the Bihar Goods and Services Tax Act, 2017 (hereinafter called the BGST Act) without grant of a reasonable opportunity of being heard in the matter and without passing a speaking order be quashed.

ii) the summary of order dated 07.03.2020 (as contained in Annexure-5) for the Tax Period June 2019 passed by the respondent no.3 in Form GST DRC-07 be quashed.

iii) the order dated 13.02.2021 (as contained in Annexure-8) for the Tax Period June 2019 passed by the respondent no.2 dismissing the appeal in limine on the solitary ground of delay in filing of the appeal be quashed.

iv) the order dated Nil (as contained in Annexure-6) for the Tax Period August 2019 passed by the respondent no.3 under section 74 (9) of the BGST Act be quashed.

v) for granting any other relief(s) to which the petitioner is otherwise found entitled to."

It is brought to our notice that vide impugned order

dated 13.02.2021 (as contained in Annexure-8) passed by the

Respondent No. 2 namely the Additional Commissioner of State

Tax, Danapur Circle, Patna, the appeal of the petitioner against

the order dated 07.03.2020 passed by Respondent No.3, the Joint

Commissioner of State Tax Danapur Circle, Patna (as contained

in Annexure-4) under section 74 of the Bihar Goods and Services

Tax Act, 2017; and summary of order dated 07.03.2020 in Form

GST DRC-07 , has been rejected merely on the grounds of being Patna High Court CWJC No.11714 of 2021 dt.08-07-2021

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 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 Patna High Court CWJC No.11714 of 2021 dt.08-07-2021

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 (as contained in Annexure-8) passed by the

Respondent No. 2 namely the Additional Commissioner of

State Tax, Danapur Circle, Patna, order dated 07.03.2020

passed by Respondent No.3, the Joint Commissioner of State

Tax Danapur Circle, Patna under section 74 of the Bihar

Goods and Services Tax Act, 2017; and summary of order

dated 07.03.2020 in Form GST DRC-07;

(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 Patna High Court CWJC No.11714 of 2021 dt.08-07-2021

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

fully cooperate in such proceedings and not take Patna High Court CWJC No.11714 of 2021 dt.08-07-2021

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

disposed of.

Patna High Court CWJC No.11714 of 2021 dt.08-07-2021

Learned counsel for the respondents undertakes to

communicate the order to the appropriate authority through

electronic mode.

(Sanjay Karol, CJ)

( S. Kumar, J) Ashwini/-

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