M/S Sai Nexgen Compucons Pvt. Ltd vs The State Of Bihar
2021 Latest Caselaw 2840 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.5715 of 2021
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M/S SAI NEXGEN COMPUCONS PVT. LTD. having its registered office at C/o Sarjan Singh Mungeriganj, Gandhi Ashram, Begusarai, Bihar through its authorized representative Amit Kumar

... ... Petitioner/s Versus

1. The State of Bihar through Chief Secretary, Government of Biha, Old Secretariat, Patna

2. Commissioner, Commercial Tax Department, Govt. of Bihar, New Secretariat, Patna

3. Additional Commissioner, Commercial Taxes (Appeal), Patna West Division, Patna

4. Joint Commissioner of Commercial Tax Gandhi Maidan Circle, Gandhi Maidan, Patna

5. Assistant Commissioner of Commercial Tax Gandhi Maidan Circle, Gandhi Maidan, Patna

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

For the Petitioner/s : Mr. Anurag Saurav, Advocate Mr. Priyajeet Pandey, 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)

Date : 30-06-2021

Petitioner has prayed for the following relief(s):

"i. For quashing order dated 17.06.2020 in Appeal no. GST/GM No. -77/19-20 (period 01.08.2019-31.08.2019) passed by Additional Commissioner, Commercial Taxes (Appeal), Patna West Division, Patna whereby and whereunder the Additional Commissioner (Appeal) dismissed the applicaton without condoning the delay in filing the appeal and without considering the fact that the copy of Patna High Court CWJC No.5715 of 2021 dt.30-06-2021

order dated 14.10.2019 was never communicated to the petitioner and while imposing the tax the authority not considered the correct transaction of the petitioner and tax had been imposed on basis of presumption. ii. For quashing of order dated 14.10.2019 under section 62 of BGST Act, 2017 passed by Assistant Commissioner of Commercial Taxes, Gandhi Maidan Circle, Patna and as well as demand notice dated 18.10.2019 issued by Assistant Commissioner, Gandhi Maidan Circle, Patna whereby and whereunder a tax of Rs. 3,47,236.00/- which includes CGST and SGST of Rs. 1,71,052.63(each) and interest of Rs. 2565.79(each) respectively has been imposed, and the aforesaid order has been passed without considering the fact tht the communication of order dated 14.10.2019 was not made to the petitioner and without considering the fact that the petitioner had less tax liability and transaction in the month of 2019.

iii. For restraining the respondent authorities from recovery of tax amount from the petitioner during the pendency of writ application. iv. For any other relief or reliefs which may the petitioner is entitled in the eye of law."

It is brought to our notice that vide impugned order

dated 17th of June, 2020 passed by the Additional Commissioner,

Commercial Taxes (Appeal), Patna, West Division, Patna in

Appeal Case No. GST/GM-77/19-20, the appeal of the petitioner

against the order dated 14.10.2019 passed by the Assistant

Commissioner of Commercial Tax, Gandhi Maidan Circle, Gandhi

Maidan, Patna, in GSTIN-10AAMCS9135P1ZD and Summary of

Order in Form GST DRC-07 dated 18th of October, 2019 in Patna High Court CWJC No.5715 of 2021 dt.30-06-2021

Reference No. ZA101019002731B 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 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 Patna High Court CWJC No.5715 of 2021 dt.30-06-2021

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

17th of June, 2020 passed by the Additional Commissioner,

Commercial Taxes (Appeal), Patna, West Division, Patna in

Appeal Case No. GST/GM-77/19-20, the order dated

14.10.2019 passed by the Assistant Commissioner of

Commercial Tax, Gandhi Maidan Circle, Gandhi Maidan,

Patna, in GSTIN-10AAMCS9135P1ZU and the Summary of

Order dated 18th of October, 2019 in Reference No.

ZA101019002731B;

(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 Patna High Court CWJC No.5715 of 2021 dt.30-06-2021

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

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;

Patna High Court CWJC No.5715 of 2021 dt.30-06-2021

(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;

(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.

Patna High Court CWJC No.5715 of 2021 dt.30-06-2021

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 AFR/NAFR CAV DATE Uploading Date 07.07.2021 Transmission Date