M/S Saroj Kumar vs The State Of Bihar
2021 Latest Caselaw 3175 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.11018 of 2021
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M/s Saroj Kumar a proprietorship firm having its place of business at Shankarpur, Munger through its proprietor namely Saroj Kumar male aged about 46 years son of Barundeo Yadav resident of Shankarpur, Munger, Bihar.

... ... Petitioner/s Versus

1. The State of Bihar through the Principal Secretary cum Commissioner, Department of State Taxes, Government of Bihar, Patna.

2. The Additional Commissioner of State Taxes (Appeals), Bhagalpur Division, Bhagalpur.

3. The Joint Commissioner of State Taxes, Munger Circle, Munger. (June-

2019).

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

For the Petitioner/s : Mr. Gautam Kumar Kejriwal, Advocate Mr. Alok Kumar Jha, Advocate For the Respondent/s : Mr. Vivek Prasad, G.P.-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 : 08-07-2021 Petitioner has prayed for the following relief(s):

"a) For issuance of a writ in the nature of certiorari for quashing of the order issued in form GST DRC -07 dated 02.02.2020 under rule 142 (5) of the Bihar Goods And Services Tax Rules, 2017 (hereinafter referred to as the "Bihar rules 2017" for short) passed by the respondent number 3 under section 74 (1) of the Bihar Goods And Service Tax Patna High Court CWJC No.11018 of 2021 dt.08-07-2021

Act, 2017 (hereinafter referred to as the "Bihar act 2017" for short);

(b) For issuance of a writ in the nature of certiorari for quashing of the order dated 27.02.2021 passed by the respondent number 2 and the demand issued in form GSTAPL-04 whereby the appeal preferred by the petitioner against the original order dated 02.02.2020 has been rejected on grounds of delay;

c) For holding and a declaration that the impugned order dated 02.02.2020 passed by the respondent No. 3 is highly cryptic, misconceived, nonspeaking and violative of principles of natural justice as the reply filed by the petitioner has not been considered at all nor discussed in the impugned order before inflicting financial liability of tax, interest and penalty;

d) For issuance of a writ or order or direction holding the action of the respondent number 3 already taken in terms of section 79 (1) (c) of the Bihar act 2017 for recovery of the amount of tax, interest and penalty imposed in terms of the order dated 02.02.2020 being illegal and without jurisdiction as it is not preceded by due compliance of the condition mandated in the proviso to section 78 of the Bihar Act, 2017.

(e) For issuance of a writ or order or direction restraining the respondent No. 3 from making any coercive recovery of the amount in demand (tax, interest and penalty) as contained in the order dated 02.02.2020 during the pendency of the present writ application;

Patna High Court CWJC No.11018 of 2021 dt.08-07-2021

(f) For further issuance of a writ or order or direction upon the respondent No. 3 to refund of the amount already recovered from the petitioner in exercise of powers under section 79 of the Bihar act 2017;

(g) For grant of any other relief or reliefs to which the petitioner is found entitled in the facts and circumstances of this case."

It is brought to our notice that vide impugned order

dated 27.02.2021 (Annexure-9) passed by the Respondent

No. 2 namely the Additional Commissioner of State Taxes

(Appeals) Bhagalpur Division, Bhagalpur in Appeal No.

AD1002210010010, the appeal of the petitioner against the

order dated 02.02.2020 (Annexure-6), passed by the

Respondent No. 3 namely Joint Commissioner of State

Taxes, Munger Circle, Munger, has been rejected merely on

the ground of delay.

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 Patna High Court CWJC No.11018 of 2021 dt.08-07-2021

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 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

27.02.2021 (Annexure-9) passed by the Respondent No. 2

namely the Additional Commissioner of State Taxes

(Appeals) Bhagalpur Division, Bhagalpur in Appeal No.

AD1002210010010, as also the order dated 02.02.2020 Patna High Court CWJC No.11018 of 2021 dt.08-07-2021

(Annexure-6), passed by the Respondent No. 3 namely Joint

Commissioner of State Taxes, Munger Circle, Munger;

(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 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 Patna High Court CWJC No.11018 of 2021 dt.08-07-2021

petition. This shall be done immediately.

(f) Petitioner undertakes to appear before the

Assessing Authority on 16th 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 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; Patna High Court CWJC No.11018 of 2021 dt.08-07-2021

(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 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.11018 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) PKP/Amrendra/-

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