Shankar Singh vs The State Of Bihar, Through The ...
2021 Latest Caselaw 3617 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                  Civil Writ Jurisdiction Case No.8427 of 2021
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Shankar Singh S/o Hariwansh Narayan Singh 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 Commisioner - 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

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Appearance :

For the Petitioner/s : Mr.Kaushal Kishore Mishra, Advocate

For the Respondent/s : Mr. Vikash Kumar, SC-11

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CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 22-07-2021 Patna High Court CWJC No.8427 of 2021 dt.22-07-2021

Petitioner has prayed for the following relief(s):

It is brought to our notice that vide impugned order

dated 23rd of January 2021 passed by the Respondent No.3

namely The Additional Commissioner of State Tax (Appeal),

Patna West Division, Patna passed in Form GST APL-02 vide

Reference No. ZD100121020393F, the appeal of the petitioner

against the demand order dated 13.03.2020 issued vide Patna High Court CWJC No.8427 of 2021 dt.22-07-2021

Reference No.ZA100320016535D by the Respondent No. 4

namely The Assistant Commissioner of State Tax, Patna

Central, Patna West, 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 Patna High Court CWJC No.8427 of 2021 dt.22-07-2021

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

23rd of January 2021 passed by the Respondent No.3 namely

The Additional Commissioner of State Tax (Appeal), Patna

West Division, Patna, in Form GST APL-02 vide Reference

No. ZD100121020393F and the demand order dated

13.03.2020 issued vide Reference No.ZA100320016535D by

the Respondent No. 4 namely The Assistant Commissioner of

State Tax, Patna Central, Patna West;

(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 Patna High Court CWJC No.8427 of 2021 dt.22-07-2021

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

shall be taken against the petitioner.

(j) The Assessing Authority shall pass a fresh order Patna High Court CWJC No.8427 of 2021 dt.22-07-2021

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;

(q) We have not expressed any opinion on merits

and all issues are left open;

Patna High Court CWJC No.8427 of 2021 dt.22-07-2021

(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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