M/S Walaji Arms (Wala Jee Arms) vs The State Of Bihar
2021 Latest Caselaw 3790 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                     Civil Writ Jurisdiction Case No.12862 of 2021

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M/s Walaji Arms (Wala Jee Arms) a proprietorship firm having its place of

business at Bari Bazar, Shiv Nandan Palace, Munger, through its proprietor

namely Santosh Kumar, male aged about 47 years son of Visheshwar Poddar

resident of House No. 128, Village-Maksuspur, District-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 Joint Commissioner of State Taxes, Munger Circle, Munger.

4. The Assistant Commissioner of State Taxes, Munger Circle, Munger.

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

For the Petitioner/s : Mr.Gautam Kumar Kejriwal, Advocate Mr. Alok Kumar Jha, Advocate For the Respondent/s : Mr.Vivek Prasad (GP7) ====================================================== 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 : 29-07-2021

Petitioner has prayed for the following relief(s): Patna High Court CWJC No.12862 of 2021 dt.29-07-2021

Patna High Court CWJC No.12862 of 2021 dt.29-07-2021

It is brought to our notice that vide impugned

orders dated 23rd of November, 2018, 23rd of February, 2019 and 4th

of September, 2019, passed by the Respondent No. 3 namely the

Joint Commissioner of State Taxes, Munger Circle, Munger in

GSTIN/ID 10ASOPK7777Q1ZU for the financial years 2015-2016,

2016-2017 and 2017-2018, and summary of order in Form GST

DRC-07 dated 5th of September, 2019, the claim of the petitioner

for transitional credit of input tax credit filed in Form TRAN-1

under Section 140 of the Bihar Goods and Service Tax Act, 2017

has been rejected. The order is ex parte in nature.

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, Patna High Court CWJC No.12862 of 2021 dt.29-07-2021

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 orders dated

23rd of November, 2018, 23rd of February, 2019 and 4th of

September, 2019, passed by the Respondent No. 3 namely the

Joint Commissioner of State Taxes, Munger Circle, Munger in

GSTIN/ID 10ASOPK7777Q1ZU for the financial years 2015-

2016, 2016-2017 and 2017-2018, and summary of order in

Form GST DRC-07 dated 5th of September, 2019;

(b) The petitioner undertakes to deposit ten per cent

of the amount of the demand raised before the Assessing

Officer. This shall be done within four weeks.

(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 Patna High Court CWJC No.12862 of 2021 dt.29-07-2021

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;

(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

Assessing Authority on 29th of September, 2021 at 10:30

A.M., if possible through digital mode;

(f) The Assessing Authority shall decide the case 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) During pendency of the case, no coercive steps

shall be taken against the petitioner.

(i) The Assessing Authority shall pass a fresh order

only after affording adequate opportunity to all concerned,

including the writ petitioner;

(j) Petitioner through learned counsel undertakes to

fully cooperate in such proceedings and not take Patna High Court CWJC No.12862 of 2021 dt.29-07-2021

unnecessary adjournment;

(k) 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;

(l) The Assessing Authority shall pass a speaking

order, assigning reasons, copy whereof shall be supplied to

the parties;

(m) Liberty reserved to the petitioner to challenge

the order, if required and desired;

(n) Equally, liberty reserved to the parties to take

recourse to such other remedies as are otherwise available

in accordance with law;

(o) 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;

(p) We have not expressed any opinion on merits

and all issues are left open;

(q) If possible, proceedings during the time of

current Pandemic [Covid-19] be conducted through digital

mode;

The instant petition sands disposed of in the Patna High Court CWJC No.12862 of 2021 dt.29-07-2021

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)

K.C.Jha/-

AFR/NAFR
CAV DATE
Uploading Date          04.08.2021
Transmission Date