M/S Prakash Udyog vs The State Of Bihar
2021 Latest Caselaw 2556 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
          Civil Writ Jurisdiction Case No. 10645 of 2020
======================================================

M/s Prakash Udyog, a proprietorship firm through its sole proprietor, Nikhil Singh, aged about 41 years (male), Son of Krishna Prasad Keshari, Resident of Jagat Kunj, East Boring Canal Road Alankar Business Centre, Buddha Colony, Patna Bihar 800001 ......... Petitioner

-Versus-

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

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

3. The Additional Commissioner, Commercial Tax Department, Government of Bihar, Patna.

4. The Joint Commissioner, Commercial Tax Department, Magadh Division, Gaya

5. The Deputy Commissioner, Commercial Tax Department, Integrated Check post Dhabi, Gaya.

6. The Commercial Tax Officer, Integrated Check Post, Dhabi, Gaya ............... Respondents

====================================================== Appearance :

For the Petitioner/s : Mr. Avinash Shekhar, Advocate Mr. Suraj Samdarshi, Advocate Mr. Piyush Ranjan, Advocate For the Respondent/s : Mr. Vikash Kumar, S.C. 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 : 23-06-2021

Petitioner has prayed for the following relief(s): Patna High Court CWJC No. 10645 of 2020 dt. 23-06-2021

"i) To issue an appropriate writ, order or direction in the nature of certiorari for quashing of order dated 22.10.2019 (Annexure 7) passed by the Commercial Taxes Tribunal, Bihar Patna in Appeal Case No. GY- 230/2017, whereby the well-founded appeal of the petitioner against the order dated 23.01.2017 passed by the Joint Commissioner of Commercial Taxes (Appeal), Magadh Division, Gaya, has been rejected merely on the grounds of being barred by limitation.

ii) To issue an appropriate writ, order or direction remanding Appeal Case No. GY-230/2017 back to the Commercial Taxes Tribunal for hearing and disposal on merits.

iii) This Hon'ble Court may adjudicate and hold that Commercial Taxes Tribunal could not have dismissed the appeal of the petitioner merely on the grounds of limitation.

iv) This Hon'ble Court may adjudicate and hold that the Commercial Taxes Tribunal has erroneously held that the appellate authority had send the impugned order to the petitioner on the same date.

v) This Hon'ble Court may adjudicate and hold that the Commercial Taxes Tribunal has erroneously held that the petitioner was present at time of hearing before the Appellate Authority.

vi) This Hon'ble Court may award the cost of litigation and suitable compensation to the Petitioner for the loss and damages caused on account of the illegal and arbitrary actions of the Respondent Authorities.

Patna High Court CWJC No. 10645 of 2020 dt. 23-06-2021

vii) To grant any other relief or reliefs which the Petitioner may be found entitled to in the facts and circumstances of the case."

It is brought to our notice that vide impugned order

dated 22nd of October, 2019 (Annexure-7) passed by the

Commercial Taxes Tribunal, Bihar, Patna in Appeal Case

No. GY-230/2017, the appeal of the petitioner against the

order dated 23.01.2017 passed by the Joint Commissioner

of Commercial Taxes (Appeal), Magadh Division, Gaya in

Appeal Case No. GY/CCP/STA-16/14-15 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 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. Patna High Court CWJC No. 10645 of 2020 dt. 23-06-2021

Statement accepted and taken on record.

Having heard learned counsel for the parties as

also perused the record made available, we dispose of the

present petition in the following mutually agreeable

terms:-

(a) We quash and set aside the impugned order

dated 22nd of October, 2019 (Annexure-7) passed by the

Commercial Taxes Tribunal, Bihar, Patna in Appeal Case

No. GY-230/2017 as also the order dated 23.01.2017

passed by the Joint Commissioner of Commercial Taxes

(Appeal), Magadh Division, Gaya in Appeal Case No.

GY/CCP/STA-16/14-15;

(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;

(c) This deposit shall be without prejudice to the

respective rights and contention of the parties and Patna High Court CWJC No. 10645 of 2020 dt. 23-06-2021

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;

(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 i.e. Joint Commissioner of

Commercial Taxes (Appeal), Magadh Division, Gaya on

26th of July, 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 Patna High Court CWJC No. 10645 of 2020 dt. 23-06-2021

steps shall be taken against the petitioner.

(i) The Appellate 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

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 Patna High Court CWJC No. 10645 of 2020 dt. 23-06-2021

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)

(S. Kumar, J)

Sujit/PKP-

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