M/S Vinayak Sales vs The State Of Bihar
2021 Latest Caselaw 5354 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                     Civil Writ Jurisdiction Case No.8325 of 2021
     ======================================================

M/S Vinayak Sales Kishori Bhawan, West Boring Canal Road, Patna through its Proprietor Sujeet alias Sujeet Shahi, Male, aged 36 years, S/o P.K. Shahi, resident of 110A, Nikunj Vihar Police Colony, Phulwarisharif, P.S.- Phulwari, District- Patna, Pin 801505.

... ... Petitioner/s Versus

1. The State of Bihar through the Commissioner of State Tax, Bihar, New Secretariat, Patna.

2. The Commissioner of State Tax, Bihar, New Secretariat, Patna.

3. The Additional Joint Commissioner of State Tax (Appeal), Patna West Division, Patna.

4. The Assistant Commissioner of State Tax, Patna Central, Patna West, Patna.

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

For the Petitioner/s : Mrs. Archana Sinha, Advocate Mr. Alok Kumar @ Alok Kr. Shahi, Advocate For the Respondent/s : Mr. Pawan Kumar, A.C. to A.G. ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 22-11-2021 Heard learned counsel for the parties.

Petitioner has prayed for the following relief(s):- Patna High Court CWJC No.8325 of 2021 dt.22-11-2021

It is brought to our notice that vide impugned order

dated 01.03.2021 passed by the Additional Joint

Commissioner of State Tax (Appeal), Patna, West Division,

Patna in Reference Number-ZD100321000121U [Form GST

APL-02] (Annexure-6), the appeal of the petitioner against

the order and Summary of Order dated 14.03.2020 passed by

the Respondent No. 4, namely the Assistant Commissioner of

State Tax, Patna Central, Patna West, Patna, in Reference No.

ZA1003200176277 (Annexure-3) 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 Patna High Court CWJC No.8325 of 2021 dt.22-11-2021

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

01.03.2021 passed by the Additional Joint Commissioner of

State Tax (Appeal), Patna, West Division, Patna in Reference

Number-ZD100321000121U [Form GST APL-02]

(Annexure-6), the order and Summary of Order dated Patna High Court CWJC No.8325 of 2021 dt.22-11-2021

14.03.2020 passed by the Respondent No. 4, namely the

Assistant Commissioner of State Tax, Patna Central, Patna

West, Patna, in Reference No. ZA1003200176277

(Annexure-3);

(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 Patna High Court CWJC No.8325 of 2021 dt.22-11-2021

to the proceedings, subject matter of present petition. This

shall be done immediately.

(f) Petitioner undertakes to appear before the

Assessing Authority on 20th of December, 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;

(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 Patna High Court CWJC No.8325 of 2021 dt.22-11-2021

from the date of appearance of the petitioner;

(m) The Assessing 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

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.

Patna High Court CWJC No.8325 of 2021 dt.22-11-2021

Learned counsel for the respondents undertakes to

communicate the order to the appropriate authority

through electronic mode.

(Sanjay Karol, CJ)

(S. Kumar, J) Amrendra/PKP AFR/NAFR CAV DATE Uploading Date 23.11.2021 Transmission Date