M/S Manoj Kumar vs The State Of Bihar
2021 Latest Caselaw 4890 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.17524 of 2021
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M/s Manoj Kumar having its place of business at village Bhagwanpur Saharsa, through its authorised representative namely Suresh Kumar Yadav male aged about 48 years Son of Shri Ramswarup Yadav, Resident of Village

- Soha Rajwara, Ward No. 6, Soha, P.S. - Sonbarsa Raj, District - Saharsa- 852129.

... ... Petitioner/s Versus

1. The State of Bihar through the Principal Secretary Cum Commissioner, Department of State Taxes, Government of Bihar, Patna.

2. The Additional Commissioner of State Taxes (Appeal), Purnea Division, Purnea.

3. The Assistant Commissioner of State Taxes, Saharsa Circle, Saharsa.

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

For the Petitioner/s : Mr.Gautam Kumar Kejriwal, Advocate For the Respondent/s : Mr.Vikash Kumar, SC 11 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 06-10-2021

Petitioner has prayed for the following relief:-

(a) For issuance of a writ in the nature of certiorari for quashing of the communication in form GST APL-04 dated 09.04.2021 issued by the respondent number 2 whereby the appeal preferred by the petitioner against the order dated 09.02.2021 passed by the respondent No. 3 under section 74 of the Bihar Goods and Services Tax Act, 2017 (hereinafter referred to as the Bihar act 2017 for short) has been rejected and a summary revised demand has been forwarded to the petitioner;

Patna High Court CWJC No.17524 of 2021 dt.06-10-2021

b) For issuance of a writ in the nature of certiorari for quashing of the order dated 09.02.2021 passed and issued by the Respondent No. 3 whereby liability of tax, interest and penalty has been imposed in a proceeding under Section 74 of the Bihar Act 2017;

c) For further restraining the respondents from making recovery of the amount of tax, interest and penalty imposed and raised in terms of the impugned order dated 09.02.2021 passed by the respondent number 3;

d) For holding and declaration that the impugned order dated 09.04.2021 passed by the respondent number 2 as first appellate authority is highly cryptic, nonspeaking and in teeth of section 107 of the Bihar Act, 2017;

e) For further holding and a declaration that the silence maintained by the respondent No. 3 upon the application seeking rectification of the order dated 09.02.2021 filed by the petitioner under section 161 of the Bihar Act 2017 is further unreasonable, arbitrary and abdication of the duty conferred upon the respondent no. 3 in terms of the said provisions of the Bihar Act, 2017;

e) For grant of any other relief or reliefs to which the petitioner is found entitled in the facts and circumstances of this case;

It is brought to our notice that vide impugned order

dated 09.04.2021 passed by the Respondent No. 2 namely

Additional Commissioner of State Taxs(Appeal), Purnea Division, Patna High Court CWJC No.17524 of 2021 dt.06-10-2021

Purnea in Form GST APL-04 , the appeal of the petitioner against

the order dated 09.02.2021 passed by the Respondent No. 3

namely Assistant Commissioner of State Taxes, Saharsa Circle,

Saharsa in GSTIN-10APTPK2319A1ZG has been rejected. The

orders appeared to be ex parte in nature.

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.17524 of 2021 dt.06-10-2021

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

09.04.2021 passed by the Respondent No. 2 namely Additional

Commissioner of State Taxs(Appeal), Purnea Division, Purnea

in Form GST APL-04 and the order dated 09.02.2021 passed

by the Respondent No. 3 namely Assistant Commissioner of

State Taxes, Saharsa Circle, Saharsa in GSTIN-

10APTPK2319A1ZG;

(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 Patna High Court CWJC No.17524 of 2021 dt.06-10-2021

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 30th November,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 Patna High Court CWJC No.17524 of 2021 dt.06-10-2021

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) 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 Patna High Court CWJC No.17524 of 2021 dt.06-10-2021

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/-

AFR/NAFR
CAV DATE
Uploading Date          07.10.2021
Transmission Date