Shankar Singh vs The State Of Bihar
2021 Latest Caselaw 3616 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                     Civil Writ Jurisdiction Case No.8601 of 2021
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Shankar Singh, S/o Hariwansh Narayan Sing,h R/o House No. 88, Gandhi Nagar, Boring Road, Near Shiv Kunj Apartment, P.O.-G.P.O., District-Patna Proprietor at M/S Shivam Construction having its Office at House No. 88, Gandhi Nagar, Boring Road, Near Shiv Kunj Apartment, P.O.-G.P.O., District-Patna.

... ... Petitioner/s Versus

1. The State of Bihar through the Commissioner-Cum-Principal Secretary, Commercial Tax Department, Government of Bihar, Patna.

2. The Commissioner-Cum-Principal Secretary, Commercial Tax Department, Government of Bihar, Patna.

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

4. The Assistant Commissioner of State Tax, Patna Central Patna West, Bihar.

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

Appearance :

For the Petitioner/s : Mr.Kaushal Kishore Mishra, Advocate Mr. Isshan Singh, Advocate Mr. Subham Bajaj, Advocate Mr. Anurag Saurav, Advocate Mr. Abhinav Alok, Advocate For the Respondent/s : Mr.Vikash Kumar, SC 11 ====================================================== 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 : 22-07-2021

Petitioner has prayed for the following relief(s):

i) To issue an appropriate order/direction in the nature Patna High Court CWJC No.8601 of 2021 dt.22-07-2021

of Certiorari quashing the Demand Order dated 06.03.2020 bearing Reference No. ZA1003200069828 whereby the Respondent Authority has arbitrarily directed the Petitioner to pay Goods and Services Tax on the Total amount received (Total Outward Supply + GST) which is already inclusive of Goods and Services Tax;

ii) To issue an appropriate order/direction in the nature of Certiorari quashing the Appeal rejection order dated 23.01.2021 bearing reference No. ZD100121020391J whereby the Respondent Authority has rejected the Appeal of the Petitioner without granting an opportunity of hearing to the Petitioner;

iii) To issue an appropriate order/direction in the nature of Mandamus directing the Respondent Authorities to grant an opportunity of hearing to the Petitioner to present his case before the Appropriate Authority;

iv) To issue an appropriate order/direction in the nature of Mandamus directing the Respondent Authorities not to take any coercive action against the Petitioner until the disposal of this writ petition;

v) To pass any other order or orders for which the Petitioners may be found entitled to in the facts and circumstances of this case.

vi) Or may pass any other suitable order/orders which your Lordships may deem fit and proper in facts and circumstances of this case."

It is brought to our notice that vide impugned order

dated 23.01.2021 passed by the Respondent No. 3 namely

Additional Commissioner of State Tax (Appeal), Patna, West Patna High Court CWJC No.8601 of 2021 dt.22-07-2021

Division, Patna in Form GST APL-02 (Reference No.

ZD100121020391J), the appeal of the petitioner against the

demand order dated 06.03.2020 passed by the Respondent No.

4 namely the Assistant Commissioner State Tax, Patna Central,

Patna West, Bihar in GSTIN-10CDNPS6150B1ZU 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 Patna High Court CWJC No.8601 of 2021 dt.22-07-2021

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

23.01.2021 passed by the Respondent No. 3 namely Additional

Commissioner of State Tax (Appeal), Patna, West Division,

Patna in Form GST APL-02 (Reference No.

ZD100121020391J), and the demand order dated 06.03.2020

passed by the Respondent No. 4 namely the Assistant

Commissioner State Tax, Patna Central, Patna West, Bihar in

GSTIN-10CDNPS6150B1ZU;

(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 Patna High Court CWJC No.8601 of 2021 dt.22-07-2021

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 petition. This

shall be done immediately.

(f) Petitioner undertakes to appear before the Assessing

Authority on 3rd of September, 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 Patna High Court CWJC No.8601 of 2021 dt.22-07-2021

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;

(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;

Patna High Court CWJC No.8601 of 2021 dt.22-07-2021

(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.

Learned counsel for the respondents undertakes to

communicate the order to the appropriate authority through

electronic mode.

(Sanjay Karol, CJ)

( S. Kumar, J) Ashwini/Sujit/-

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