Aadhar Stumbh Township Private ... vs The State Of Bihar
2021 Latest Caselaw 3793 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.10046 of 2021
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Aadhar Stumbh Township Private Limited Address-Flat-302, Jaya Apartment, B Bhattacharya Road, Chowk, Patna, Bihar-800023 through its authorized representative Ankit Garg, aged abput 36 Years (Male), Son of Sh. Anil Garg.

... ... Petitioner/s

Versus

1. The State of Bihar through the Commissioner, State Taxes, Bihar, Patna.

2. Additional Commissioner of State Tax (Appeal) Appellate Authority, Patna West Division, Patna, Bihar.

3. Deputy Commissioner of State Tax, Patna South Patna West, Bihar.

4. The Branch Manager, Kotak Mahindra Bank Ltd, Exhibition Road Branch, Patna.

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

For the Petitioner/s : Mr.Kumar Shanu, Advocate Mr. Amrit Kumar, Advocate For the Respondent/s : Mr. Pawan Kumar, AC to AG ====================================================== 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):

I. For the issuance of a writ of certiorari and/or, any other appropriate writ/direction/order in the light of the directions passed by the Hon'ble Supreme Court of India in RE: COGNIZANCE FOR EXTENSION OF LIMITATION, SUO MOTU WRIT PETITION (CIVIL) No. 3 of 2020 for Patna High Court CWJC No.10046 of 2021 dt.29-07-2021

quashing the non-speaking order passed vide Order dated 01.03.2021 bearing Reference no. ZD100321000123Q by the Respondent No. 2, wherein the appeal bearing acknowledgment no. AD100221001423A was rejected.

II. For the issuance of a writ of mandamus, and/or, any other appropriate writ/direction/order to ensure the grant of all consequential reliefs in the matter.

III. For providing an opportunity of being heard to the petitioner and present its case/appeal before the Respondent No. 2 without re-submitting the pre-deposit amount as the same was deposited in the previous appeal which has not yet been returned to the petitioner.

IV. For staying the operation of Respondent No. 3/Deputy Commissioner of State Tax, Patna South: Patna West, Bihar's order dated 07.03.2020 and order/demand/communication dated 08.03.2020 bearing reference number CA1003200128377 (for the period- August 2019, GST No. 10AAFCA9593GIZO) passed under Section 74 of Bihar Goods and Service Act, 2017 until the pendency of the appeal.

V. For restraining the Branch Manager/officials of Kotak Mahindra Bank Ltd, Exhibition Road Branch, Patna from initiating any coercive action in the form of recovery of GST dues/remittance of any money to the state tax department from the account of the petitioner, in terms of its letter Patna High Court CWJC No.10046 of 2021 dt.29-07-2021

02.03.2021, until the pendency of the appeal or directing the Respondent No. 3 to return the amount to the petitioner deducted from the petitioner's aforesaid account by Respondent no. 4 and deposited with Respondent no. 3, until the pendency of the appeal, if a coercive action is taken in terms of letter dated 02.03.2021 before the hearing of this case.

VI. For providing any other relief that your good self may deem fit in the interest of justice, equity and good conscience."

It is brought to our notice that vide impugned order

dated 01.03.2021 passed by the Respondent No. 2, namely the

Additional Commissioner of State Tax (Appeal/Appellate

Authority), Patna West Division, Patna, Bihar in Appeal bearing

acknowledgment no.AD100221001440E, the appeal of the

petitioner against the order dated 07.03.2020 and

order/demand/communication dated 08.03.2020 bearing

reference number ZD100321000129E (for the period April

2019, GST No. 10AAFCA9593GIZO) passed by Respondent

No.3, namely Deputy Commissioner of State Tax, Patna South:

Patna West, Bihar under Section 74 of the Bihar Goods and

Service Tax Act, 2017; has been rejected by a non-speaking

order.

Patna High Court CWJC No.10046 of 2021 dt.29-07-2021

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 Appellate Authority

for deciding the appeal afresh. Also, while considering and

deciding the appeal, the ground of delay shall not be taken into

account and the appeal shall be decided on merits. Also, during

pendency of the appeal, 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 determine the

amount due and payable by the assessee. The order, ex parte in

nature, passed in violation of the principles of natural justice, Patna High Court CWJC No.10046 of 2021 dt.29-07-2021

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 01.03.2021 passed by the Respondent No. 2, namely

the Additional Commissioner of State Tax

(Appeal/Appellate Authority), Patna West Division, Patna,

Bihar in Appeal bearing acknowledgment

no.AD100221001440E, the order dated 07.03.2020 and

order/demand/communication dated 08.03.2020 bearing

reference number ZA1003200128179 (for the period April

2019, GST No. 10AAFCA9593GIZO) passed by

Respondent No.3, namely Deputy Commissioner of State

Tax, Patna South: Patna West, Bihar under Section 74 of the

Bihar Goods and Service Tax Act, 2017;

(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, the appeal shall be decided on

merits. However, if the amount is not deposited for

whatever reason(s), same shall be done before the next

date;

Patna High Court CWJC No.10046 of 2021 dt.29-07-2021

(c) This deposit shall be without prejudice to the

respective rights and contention of the parties and subject to

the order passed by the Appellate Authority. 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;

(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

Appellate Authority on 29th September, 2021 at 10:30

A.M., if possible through digital mode;

(f) The Appellate Authority shall condone the delay

in filing the appeal and decide the appeal 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 appeal, no coercive

steps shall be taken against the petitioner.

(i) The Appellate Authority shall pass a fresh order Patna High Court CWJC No.10046 of 2021 dt.29-07-2021

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

unnecessary adjournment;

(k) The Appellate Authority shall decide the appeal

on merits expeditiously, preferably within a period of two

months from the date of appearance of the petitioner;

(l) Liberty reserved to the petitioner to challenge

the order, if required and desired;

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

recourse to such other remedies as are otherwise available

in accordance with law;

(n) 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;

(o) We have not expressed any opinion on merits

and all issues are left open;

(p) If possible, proceedings during the time of

current Pandemic [Covid-19] be conducted through digital

mode;

Patna High Court CWJC No.10046 of 2021 dt.29-07-2021

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)

K.C.Jha/-

AFR/NAFR
CAV DATE
Uploading Date          04.08.2021
Transmission Date