M/S Ragini Kumari A ... vs The State Of Bihar Through The ...
2021 Latest Caselaw 3185 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.10172 of 2021
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M/s Ragini Kumari a proprietorship firm having its place of business at refugee colony, ward No. 15, Munger through its authorised representative namely Shri vikash Saraf male aged about 41 years son of Late Bijay Agrawal resident of Bekapur, Shivaji Chowk, Munger- 811201.

... ... 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 Assistant Commissioner of State Taxes, Munger Circle, Munger, (December-2018)

... ... 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 ex-parte order dated 06.03.2020 and summary of order in form GST DRC

-07 dated 06.03.2020 under rule 142 (5) of the Bihar Goods And Services Tax Rules, 2017 (hereinafter referred to as the "Bihar rules 2017" for short) passed and issued by the respondent number 3 under Patna High Court CWJC No.10172 of 2021 dt.08-07-2021

section 74 (1) of the Bihar Goods And Service Tax 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 whereby the appeal preferred by the petitioner against the original order dated 06.03.2020 has been rejected on grounds of delay;

c) For holding and a declaration that the impugned order dated 06.03.2020 passed by the respondent No. 3 is highly cryptic, misconceived, nonspeaking and violative of principles of natural justice;

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 06.03.2020 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 06.03.2020 during the pendency of the present writ application;

(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 Patna High Court CWJC No.10172 of 2021 dt.08-07-2021

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-7) passed by the Respondent

No. 2 namely the Additional Commissioner of State Taxes

(Appeals) Bhagalpur Division, Bhagalpur in Appeal No.

AD100221000689P, the appeal of the petitioner against the

order dated 06.03.2020 (Annexure-4) and summary of order

dated 06.03.2020 in form GST DRC-07, passed by the

Respondent No. 3 namely Assistant Commissioner of State

Taxes, Munger Circle, Munger, has been rejected.

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. Patna High Court CWJC No.10172 of 2021 dt.08-07-2021

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-7) passed by the Respondent No. 2

namely the Additional Commissioner of State Taxes

(Appeals) Bhagalpur Division, Bhagalpur in Appeal No.

AD100221000689P, as also the order dated 06.03.2020

(Annexure-4) and summary of order dated 06.03.2020 in

Patna High Court CWJC No.10172 of 2021 dt.08-07-2021

namely Assistant 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.10172 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.10172 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.10172 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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