M/S Bhola Sharan Singh vs Commissioner Of Cgst And Central ...
2021 Latest Caselaw 3170 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA

                     Civil Writ Jurisdiction Case No.11345 of 2021


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M/S Bhola Sharan Singh a proprietory concern having its office at Old G T

Road, Near Dani Bigha Bus Stand, Shahpur, District Aurangabad, Bihar

through its proprietor Bhola Sharan Singh (Male, aged about 68 Years) son

Late. Ram Lakahan Singh resident of Old G T Road, Near Dani Bigha Bus

Stand, P.S. Nagar Thana, Pipardih, Shahpur, District Aurangabad, Bihar.

... ... Petitioner/s

Versus

1. Commissioner of CGST and Central Excise having its office at Central

Revenue Building, (Annexe), Bir Chand Patel Marg, Patna.

2. Superintendent CGST and Central Excise, Aurangabad, Bihar.

... ... Respondent/s

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Appearance :

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

Ms. Manju Jha, Advocate

For the Respondent/s : Mr. Vikash Kumar, SC-11

For the Union of India : Dr. K.N.Singh, Addl. S.G.

Mr. Anshuman Singh, Sr. S.C., CGST & CX

====================================================== Patna High Court CWJC No.11345 of 2021 dt.08-07-2021

CORAM: HONOURABLE THE CHIEF JUSTICE

and

HONOURABLE MR. JUSTICE S. KUMAR

ORAL JUDGMENT

(Per: HONOURABLE THE CHIEF JUSTICE)

Date : 08-07-2021

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. 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.11345 of 2021 dt.08-07-2021

The instant petition has been filed for quashing of the

show cause notice dated 25.04.2018 (as contained in

Annexure-3) issued by the Respondent No.1 namely Patna High Court CWJC No.11345 of 2021 dt.08-07-2021

Commissioner of CGST & CX, Patna and order dated

16.10.2020 (as contained in Annexure-5) passed by

Respondent No.1 namely Commissioner of CGST & CX,

Patna in DIN-20201060XY00003185D2 whereby service tax,

interest and penalty was imposed upon the petitioner without

considering the written submission and the relevant documents

filed therewith.

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.11345 of 2021 dt.08-07-2021

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 notice

dated 25.04.2018 (as contained in Annexure-3) issued by the

Respondent No.1 namely Commissioner of CGST & CX,

Patna and order dated 16.10.2020 (as contained in Annexure-5)

passed by Respondent No.1 namely Commissioner of CGST

& CX, Patna in DIN-20201060XY00003185D2;

(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 Patna High Court CWJC No.11345 of 2021 dt.08-07-2021

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 15th 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;

Patna High Court CWJC No.11345 of 2021 dt.08-07-2021

(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) The Assessing Authority shall pass a speaking

order assigning reasons, copy whereof shall be supplied to

the parties;

(n) Liberty reserved to the petitioner to challenge

the order, if required and desired;

(o) Equally, liberty reserved to the parties to take

recourse to such other remedies as are otherwise available

in accordance with law;

(p) 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;

(q) We have not expressed any opinion on merits

and all issues are left open;

(r) If possible, proceedings during the time of

current Pandemic [Covid-19] be conducted through digital Patna High Court CWJC No.11345 of 2021 dt.08-07-2021

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) Ashwini/-

AFR/NAFR
CAV DATE
Uploading Date          14.07.2021
Transmission Date