M/S Sai Nexgen Compucons Pvt. Ltd vs The State Of Bihar
2021 Latest Caselaw 3364 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.12275 of 2021
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M/s Sai Nexgen Compucons Pvt. Ltd. having its registered office at C/o Sarjan Singh Mungeriganj, Gandhi Ashram, Begusarai, Bihar through its authorized representative Amit Kumar.

... ... Petitioner/s Versus

1. The State of Bihar through Chief Secretary, Government of Bihar, Old Secretariat, Patna.

2. Commissioner, Commercial Tax Department, Govt. of Bihar, New Secretariat, Patna.

3. Additional Commissioner, Commercial Taxes (Appeal), Patna, West Division, Patna.

4. Joint Commissioner of Commercial Tax, Gandhi Maidan Circle, Gandhi Maidan, Patna.

5. Assistant Commissioner of Commercial Tax, Gandhi Maidan Circle, Gandhi Maidan, Patna.

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

For the Petitioner/s : Mr. Anurag Saurav, Advocate Mr. Abhinay Alok, Advocate Mr. Priyajeet Pandey, Advocate For the Respondent/s : Mr. Vikash Kumar, S.C. 11 Mr. Pawan Kumar, AC to AG ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE PRABHAT KUMAR JHA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE PRABHAT KUMAR JHA) ===================================================== (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 : 15-07-2021

Petitioner has prayed for the following relief(s):-

"i. For quashing of order dated 24.12.2020 passed in Appeal no. GST/GM No. 60/19-20 (period Patna High Court CWJC No.12275 of 2021 dt.15-07-2021

01.10.2019-31.10.2019) passed by the Additional Commissioner, Commercial Taxes (Appeal), Patna, West Division, Patna whereby and whereunder the Additional Commissioner (Appeal) dismissed the application without condoning the delay in filing the appeal and without considering the fact that the copy of order under section 62 of SGST Act was never communicated to the petitioner and while imposing the tax the authority not considered the fact that the petitioner having no liability of tax in the said period. ii. For quashing of order dated 09.12.2019 issued vide notice Reference No. 1711 dated 09.12.2019 issued by Assistant Commissioner of State Tax, Gandhi Maidan Circle, Patna, whereby and whereunder an amount of Rs. 3,47,236/- was imposed to the petitioner on presumption without considering that no tax incurred during the said period. iii. For restraining the respondent authorities from recovery of tax amount from the petitioner during the pendency of writ application.

iv. For any other relief or reliefs which may the petitioner is entitled in the eye of law."

It is brought to our notice that vide impugned order

dated 24.12.2020 passed by the Additional Commissioner,

Commercial Taxes (Appeal), Patna, West Division, Patna in

Appeal Case No. GST/GM-60/19-20, the appeal of the

petitioner against the order dated 09.12.2019 passed by the

Assistant Commissioner of Commercial Tax, Gandhi Maidan Patna High Court CWJC No.12275 of 2021 dt.15-07-2021

Circle, Gandhi Maidan, Patna, in GSTIN-

10AAMCS9135P1ZU in Reference No. 1711 has been

rejected merely on the grounds of being 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 Patna High Court CWJC No.12275 of 2021 dt.15-07-2021

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

24.12.2020 passed by the Additional Commissioner,

Commercial Taxes (Appeal), Patna, West Division, Patna in

Appeal Case No. GST/GM-60/19-20 as also order dated

09.12.2019 passed by the Assistant Commissioner of

Commercial Tax, Gandhi Maidan Circle, Gandhi Maidan,

Patna, in GSTIN-10AAMCS9135P1ZU in Reference No.

1711;

(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.

Patna High Court CWJC No.12275 of 2021 dt.15-07-2021

(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 petition. This

shall be done immediately.

(f) Petitioner undertakes to appear before the Assessing

Authority on 18th 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, Patna High Court CWJC No.12275 of 2021 dt.15-07-2021

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;

(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 Patna High Court CWJC No.12275 of 2021 dt.15-07-2021

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)

( Prabhat Kumar Jha, J)

S.Kumar/Harish AFR/NAFR CAV DATE Uploading Date 20.07.2021 Transmission Date