M/S K.R. Steel Traders vs The State Of Bihar
2021 Latest Caselaw 4943 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.17795 of 2021
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M/s K.R. Steel Traders, a proprietorship firm having its place of business near Tiwari Bechar Petrol Pump, Kankar Bagh, Patna-800020 through its proprietor namely Ajit Kumar Jain male aged about 61 Years, Son of Kanhaiya Lal Jain, Resident of Jain Sadan, Govind Mitra Road, Patna - 800004.

... ... 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), Patna West Division, Patna.

3. The Joint Commissioner of State Taxes, Patna South Circle, Patna.

... ... 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 RAJAN GUPTA ORAL JUDGMENT

(Per: HONOURABLE THE CHIEF JUSTICE)

Date : 21-10-2021

Petitioner has prayed for the following relief(s):

"1(a) For issuance of a writ in the nature of certiorari for quashing of the appellate order dated 16.12.2020 issued vide form GST APL-02 by the respondent no.2 whereby the appeal preferred by the petitioner has been rejected on grounds of delay; Patna High Court CWJC No.17795 of 2021 dt.21-10-2021

(b) For issuance of a writ in the nature of certiorari for quashing of the order dated 16.08.2019 passed by the respondent No. 3 under section 140 and 73(9) of the Bihar goods and service tax act 2017 (hereinafter referred to as the Bihar act 2017 for short) and summary or order issued vide reference number ZA819002355U in form GST DRC-07 dated 29.08.2019 by the respondent number 3 on grounds of the same being without jurisdiction;

(c) For holding and declaration that the appeal preferred by the petitioner on 10.12.2020 is well within limitation prescribed under section 107 of the Bihar act 2017 in view of the order dated 30.04.2020 and 18.05.2020 passed in C.W.J.C. number 5633 of 2020 by full bench of this honourable court read with the order dated 23.03.2020 passed by honourable Supreme Court in Writ Petition (Civil) No. 3 of 2020;

(d) For further holding and a declaration that the limitation prescribed under section 107 of the act 2017 can be extended under section 5 of the Limitation Act, 1963 and the provisions of the Limitation Act, 1963 shall apply with full force in view of section 29(2) of the said act;

(e) For grant of any other relief or reliefs to which the petitioner is found entitled in the fact and circumstances of this case."

It is brought to our notice that vide impugned

order dated 16.12.2020 passed by Respondent No. 2, namely

Additional Commissioner of State Taxes (Appeal), Patna Patna High Court CWJC No.17795 of 2021 dt.21-10-2021

West Division, Patna, in Reference No. ZD101220015172J

(Annexure-5), in Form GST APL-02, the appeal of the

petitioner against the order dated 16.08.2019, passed by

Respondent No. 3 namely the Joint Commissioner of State

Taxes, Patna South Circle, Patna (Annexure-2) and

Summary of order in Form GST DRC-07 dated 29.08.2019

passed by Deputy Commissioner of State Tax Patna South,

Jurisdiction- Patna South, Patna West, Bihar Patna in

Reference No. ZA100819002355U 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 Patna High Court CWJC No.17795 of 2021 dt.21-10-2021

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 16.12.2020 passed by Respondent No. 2, namely

Additional Commissioner of State Taxes (Appeal), Patna

West Division, Patna, in Reference No. ZD101220015172J

(Annexure-5), in Form GST APL-02, the order dated

16.08.2019, passed by Respondent No. 3 namely the Joint

Commissioner of State Taxes, Patna South Circle, Patna

(Annexure-2) and Summary of order in Form GST DRC-07

dated 29.08.2019 passed by Deputy Commissioner of State Patna High Court CWJC No.17795 of 2021 dt.21-10-2021

Tax Patna South, Jurisdiction- Patna South, Patna West,

Bihar Patna in Reference No. ZA100819002355U;

(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 Patna High Court CWJC No.17795 of 2021 dt.21-10-2021

petition. This shall be done immediately.

(f) Petitioner undertakes to appear before the

Assessing Authority on 15th of 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

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; Patna High Court CWJC No.17795 of 2021 dt.21-10-2021

(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.17795 of 2021 dt.21-10-2021

Learned counsel for the respondents undertakes to

communicate the order to the appropriate authority

through electronic mode.

(Sanjay Karol, CJ)

(Rajan Gupta, J) P.K.P./Amrendra AFR/NAFR CAV DATE Uploading Date 22.10.2021 Transmission Date