Patna High Court
Ravi Prakash Banka vs The State Of Bihar on 15 November, 2021
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.18849 of 2021
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Ravi Prakash Banka S/o Late Narayan Prasad Banka Proprietor of M/s P K
Trading Company having its principal place of business at 266, Purani Bazar,
Jhajha, Jamui, Bihar, 811308.
... ... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.
2. The Commissioner-cum-Principal Secretary, Commercial Taxes,
Commercial Taxes Department, State of Bihar, Patna.
3. The Additional Commissioner (Appeal), State Tax, Bhagalpur Division,
Bihar.
4. The Joint Commissioner (Appeal), State Tax, Bhagalpur Division, Bihar.
5. The Assistant Commission of State Tax, Jamui/Bhagalpur, Bihar.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Navendu Kumar, Advocate
For the Respondent/s : Mr.Vikash Kumar (SC-11)
Mr. Sriram Krishna, A.C. to S.C. 11
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE S. KUMAR
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE S. KUMAR)
Date : 15-11-2021
Heard learned counsel for the parties.
Petitioner has prayed for the following relief(s):-
Patna High Court CWJC No.18849 of 2021 dt.15-11-2021
"(i) To issue an appropriate writ, order or
direction in the nature of certiorari for quashing the
order under reference No. ZD 100221004877X dated
06.02.2021 issued under section 73 of the CGST Act
read with DRC-07 (digital summary of the demand
order) under Rule 142(5) of the CGST Rules by the
Ld. ACST directing the petitioner to pay the said
amount of alleged wrongly availed or utilized ITC of
IGST of Rs. 12,08,483/- along with interest of Rs.
1,23,166/- plus penalty of Rs. 1,20,848/-, i.e. Rs.
14,52,497/- on wholly erroneous grounds and without
considering the case of the petitioner, especially in
view of the fact that the petitioner's case was covered
under the provisions of Rule 36(4) of the CGST Rules
in terms of Notification No. 30/2020 CT dated 3rd
April 2020.
(ii) To issue an appropriate writ, order or
direction in the nature of certiorari for quashing the
Show-cause Notice, issued by the Ld. Assistant
Commissioner of State Tax, Jamui, Bhagalpur, Bihar
under Reference No. ZD101220025945Y dated
26.12.2020 under section 73 of the CGST Act as well
as the SGST Act, read with DRC-01 (digital summary
of show cause notice) under rule 100 (2) & 142(1)(a)
of the CGST Rules, 2017 vide Reference No.
ZD101220025945Y dated 26.12.2020 for rejection of
claim of Input Tax Credit of IGST for the period of
April to June 2020 directing to furnish a reply along
with supporting documents as evidence in support of
claim of IGST of Rs. 12,08,483/- alleged to have been
Patna High Court CWJC No.18849 of 2021 dt.15-11-2021
wrongly availed or utilized in GSTR-3B;
(iii) To issue an appropriate writ, order or
direction in the nature of certiorari for quashing the
order of the Ld. Joint Commissioner of State Tax,
Jamui, Bhagalpur, Bihar, appellate authority, dated
05.08.2021 is bad in law inasmuch as the same has
been passed in a mechanical manner without any
application of mind and without dealing with the
grounds raised by the petitioner;
(iv) for any such other order orders for which
the petitioner is entitled."
It is brought to our notice that vide impugned order
dated 5th of August, 2021 (Annexure-4) passed by the
Additional Commissioner of State Tax on behalf of Appellate
Authority in Reference No. ZD1008210005163 [Form GST
APL-02], the appeal of the petitioner against the order dated 6th
of February, 2021, passed by the Assistant Commissioner of
State Tax, Jamui/Bhagalpur, Bihar, in Reference No.
ZD100221004877X (Annexure-2) has been rejected merely on
the grounds of non-receipt of certified copies. 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 Appellate Authority
for deciding the appeal afresh. Also, while considering and
Patna High Court CWJC No.18849 of 2021 dt.15-11-2021
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.
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
5th of August, 2021 (Annexure-4) passed by the Additional
Commissioner of State Tax on behalf of Appellate Authority in
Reference No. ZD1008210005163 [Form GST APL-02]
(Annexure-4);
(b) The appeal is restored to its original file and
number;
(c) 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;
(d) This deposit shall be without prejudice to the
Patna High Court CWJC No.18849 of 2021 dt.15-11-2021
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;
(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 Appellate
Authority on 13th of December, 2021 at 10:30 A.M., if
possible through digital mode;
(g) 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;
(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 appeal, no coercive steps
shall be taken against the petitioner.
(j) The Appellate Authority shall pass a fresh order
only after affording adequate opportunity to all concerned,
Patna High Court CWJC No.18849 of 2021 dt.15-11-2021
including the writ petitioner;
(k) Petitioner through learned counsel undertakes to
fully cooperate in such proceedings and not take
unnecessary adjournment;
(l) 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;
(m) The Appellate Authority shall pass a speaking
order assigning reasons, copy whereof shall be supplied to
the parties;
(n) Liberty reserved to the petitioner to challenge
the order, if required and desired;
(o) Equally, liberty reserved to the parties to take
recourse to such other remedies as are otherwise available
in accordance with law;
(p) 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;
(q) We have not expressed any opinion on merits
and all issues are left open;
(r) If possible, proceedings during the time of
Patna High Court CWJC No.18849 of 2021 dt.15-11-2021
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)
Veena/PKP
AFR/NAFR NAFR
CAV DATE NA
Uploading Date
Transmission Date NA
