M/S Bindeshwari Chaurasia vs The State Of Bihar
2021 Latest Caselaw 2839 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                     Civil Writ Jurisdiction Case No.7149 of 2021
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M/s Bindeshwari Chaurasia a Proprietorship firm having its Office at Mohanpur, New Punaichak, Patna-800001, through its Propprietorship Bindeshwari Chaurasiya, Son of Singeshwar Raut, Resident of Village- Pariharpur, P.S.-Pariharpur, District-Madhubani.

... ... Petitioner/s

Versus

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

2. The Joint Commissioner, Appeal State Taxes, Patna Circle, Patna.

3. The Dy Commissioner, State Taxes, Patna Central Circle, Patna.

4. The Assistant Commissioner, State Taxes, Patna Central Circle, Patna.

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

For the Petitioner/s : Mr.Akash Chaturvedi, 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 : 30-06-2021

Petitioner has prayed for the following relief(s):

I. For issuance of writ in the nature of the nature of dated certiorari for quashing of order dated 15.01.2021 passed by the Joint Commissioner, Patna High Court CWJC No.7149 of 2021 dt.30-06-2021

(Appeal) State Taxes, Patna Central Circle, Patna whereby the appeal been preferred by the petitioner has dismissed merely on the ground of delay in submission of appeal as merit of the impugned order was totally overlooked nor considered by the appellate authority. II. For issuance of writ in the nature of of mandamus directing the respondents to considered the appeal filed by the petitioner against the order of assessment made by the Assistant Commissioner State Taxes after hearing the petitioner and considering the submission the appeal of the petitioner may be disposed of. III. To any other relief/s to which the petitioner is found entitled to in facts and circumstances of the present case.

It is brought to our notice that vide impugned order

dated 15th of January, 2021 passed by the Respondent No. 2 namely

the Joint Commissioner, Appeal State Taxes, Patna Circle, Patna in

FORM GST APL-02 against the order of assessment passed by

Respondent No. 4, namely Assistant Commissioner, State Taxes,

Patna Circle, Patna, whereby the appeal of the petitioner has been

rejected on the ground of appeal being barred by limitation.

Learned counsel for the Revenue, states that he has no

objection if the matter is remanded to the Appellate Authority Patna High Court CWJC No.7149 of 2021 dt.30-06-2021

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

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

15th of January, 2021 passed by the Respondent No. 2 namely

the Joint Commissioner, Appeal State Taxes, Patna Circle, Patna High Court CWJC No.7149 of 2021 dt.30-06-2021

Patna in FORM GST APL-02;

(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

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 9th of August, 2021 at 10:30 A.M., if possible Patna High Court CWJC No.7149 of 2021 dt.30-06-2021

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

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) 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;

Patna High Court CWJC No.7149 of 2021 dt.30-06-2021

(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

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          07.07.2021
Transmission Date