Shivam Jan Swasthya Devem ... vs The State Of Bihar
2021 Latest Caselaw 3179 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.10587 of 2021
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Shivam Jan Swasthya Evem Sarvangin Vikas Kendra, a Non-Government Organisation, having its office at 5C/12, Manna Singh Lane, Boring Road, Bihar, 800001, through its Secretary, Raushan Kumar, aged about 50 years (male), son of Ram Babu Singh, resident of Machaha, Ulao, District Begusarai.

... ... Petitioner/s Versus

1. The State of Bihar through the Principal Secretary, Commercial Taxes Department, Government of Bihar.

2. The Principal Secretary cum Commissioner, State Tax, Commercial Taxes Department, Government of Bihar.

3. The Additional Commissioner (Appeal), State Tax, Patna West Division, Patna.

4. The Assistant Commission of State Tax, Patna Central Circle, Patna West.

5. The Deputy Commissioner of State Tax, Patna Central Circle, Patna West.

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

For the Petitioner/s : Mr. Suraj Samdarshi, Advocate Mr. Ranjan Prakash, Advocate Mr. Avinash Shekhar, 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):

"1.(i) To issue an appropriate writ, order or direction in the nature of certiorari for quashing order contained in memo no 71 dated 21.01.2021 passed by Respondent Additional Commissioner Patna High Court CWJC No.10587 of 2021 dt.08-07-2021

(Appeal), State Tax in Case no. GST/PTC-09/20-21 whereby the well founded appeal of the petitioner against the adjudication order dated 02.03.2020 passed by the Respondent Deputy Commissioner of State Tax under section 74 of the BGST Act 2017 directing the petitioner to deposit Tax of Rs. 45,61,840/- interest of 6,40,940/- and penalty of Rs. 45,61,840/- (Total Rs. 97,64,620/-), has been rejected on wholly erroneous grounds and without considering the case of the petitioner.

(ii) To issue an appropriate writ, order or direction in the nature of certiorari for quashing the adjudication order dated 02.03.2020 passed by the Respondent Deputy Commissioner of State Tax under section 74 of the BGST Act 2017 directing the petitioner to deposit Tax of Rs. 45,61,840/- interest of 6,40,940/- and penalty of Rs. 45,61,840/- (Total Rs. 97,64,620/-).

(iii) To issue an appropriate writ, order or direction in the nature of certiorari for quashing the show cause contained in Reference no ZA1001200125651 dated 27.01.2020 issued by the Respondent Deputy Commissioner of State Tax under section 74 BGST Act 2017 alleging concealment in outward supply of Rs.

2,53,43,550/-.

(iv) To issue an appropriate writ, order or direction in the nature of certiorari for quashing letter dated 21.01.2021 issued by the Respondent Assistant Commissioner State Tax to the Branch Patna High Court CWJC No.10587 of 2021 dt.08-07-2021

Manager Axix Bank, Udaiman Apartment, Boaring Road, Patna, under section 79(1)(c) of the Central Goods and Services Tax 2017 directing them to make payment of Rs. 93,08,436/- on behalf of the petitioner.

(v) During the pendency of this writ application the Respondents may be directed not to take any coercive steps against the petitioner for recovery of the disputed tax amount.

(vi) This Hon'ble Court may further adjudicate and hold that the services provided by the Petitioner is exempted under sl no. 3 of the notification no 12/2017 central tax (rate) dated 28.06.2017.

(vii) This Hon'ble Court may further adjudicate and hold that the show cause dated 27.01.2020, the adjudication order dated 02.03.2020 and the appellate order contained in memo no. 71 dated 21.01.2021 having been issued without any DIN are in contravention of circular no 122/41/2019/GST dated 05/11/2019 and are therefore bad in law.

(viii) This Hon'ble Court may further adjudicate and hold that the adjudication order is bad is law inasmuch as no reasons have been given for confirming the disputed tax.

(ix) This Hon'ble Court may further adjudicate and hold that the order of appellate authority dated 21.01.2021 is bad in law inasmuch as the same has been passed in a mechanical manner without any Patna High Court CWJC No.10587 of 2021 dt.08-07-2021

application of mind and without dealing with the grounds raised by the petitioner.

(x) To grant any other relief or reliefs which the petitioner may be found entitled to in the facts and circumstances of the case."

It is brought to our notice that vide impugned order

dated 21.01.2021 (Annexure-5) passed by the Additional

Commissioner (Appeal), State Tax in Case No. GST/PTC-

09/20-21, the appeal of the petitioner against the order

dated 02.03.2020 (Annexure-4) passed by the Deputy

Commissioner of State Tax, Patna Central Circle, Patna

West has been rejected.

Learned counsel for the Revenue, states that he has

no objection if the matter is remanded to the Appellate

Authority for deciding the appeal afresh. Also, while

considering and deciding the appeal, the ground of delay

shall not be taken into account and the appeal shall be

decided on merits. Also, during pendency of the appeal, no

coercive steps shall be taken against the petitioner.

Statement accepted and taken on record.

Having heard learned counsel for the parties as

also perused the record made available, we dispose of the Patna High Court CWJC No.10587 of 2021 dt.08-07-2021

present petition in the following mutually agreeable

terms:-

(a) We quash and set aside the impugned impugned

order dated 21.01.2021 (Annexure-5) passed by the

Additional Commissioner (Appeal), State Tax in Case No.

GST/PTC-09/20-21, as also the order dated 02.03.2020

(Annexure-4) passed by the Deputy Commissioner of

State Tax, Patna Central 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, the appeal shall be decided on

merits. However, if the amount is not deposited for

whatever reason(s), same shall be done before the next

date;

(c) 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; Patna High Court CWJC No.10587 of 2021 dt.08-07-2021

(d) 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.

(e) Petitioner undertakes to appear before the

Appellate Authority i.e. Joint Commissioner of

Commercial Taxes (Appeal), Magadh Division, Gaya on

16th of August, 2021 at 10:30 A.M., if possible through

digital mode;

(f) The Appellate Authority shall condone the

delay in filing the appeal and decide the appeal on

merits after complying with the principles of natural

justice;

(g) Opportunity of hearing shall be afforded to

the parties to place on record all essential documents

and materials, if so required and desired;

(h) The assessing authority shall examine the

issue of exemption statutory in nature as is raised by the

petitioner.

(i) During pendency of the appeal, no coercive

steps shall be taken against the petitioner. Patna High Court CWJC No.10587 of 2021 dt.08-07-2021

(j) The Appellate 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 Appellate Authority shall decide the appeal

on merits expeditiously, preferably within a period of two

months from the date of appearance of the petitioner;

(m) The Appellate 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 Patna High Court CWJC No.10587 of 2021 dt.08-07-2021

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.

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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