M/S Classic Marble And Granites vs The State Of Bihar
2021 Latest Caselaw 5025 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.18267 of 2021
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M/s Classic Marble and Granites a propreitorship firm having its place of business at Jaganpura, R K Nagar, Patna-800027 through its proprietor namely Hassan Raza male aged about 39 years son of M ohammad Hasan, Resident of Village-Chaknasir, P.O. Sukki, P.S. Patepur, District-Vaishali- 843114.

... ... 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 Deputy Commissioner of State Taxes, Patna South Circle, Patna (2018-

19).

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

For the Petitioner/s : Mr. Gautam Kumar Kejriwal, Advocate Mr. Alok Kumar Jha, Advocate For the Respondent/s : Mr. Vivek Prasad, G.P.-7 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE A. M. BADAR ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 27-10-2021

Heard learned counsel for the parties.

Petitioner has prayed for the following relief(s):-

Patna High Court CWJC No.18267 of 2021 dt.27-10-2021

Having heard learned counsel for the parties, as also

perused the record, we are of the considered view that the prayer

made by the petitioner, with regard to applicability of the

provisions of Section 50/74 of the Bihar Goods and Service Tax

Act, 2017 (hereinafter referred to as "the Act") was never

considered by the Appellate Authority, despite the issue having

been raised by the petitioner. Also, the order passed by the

Appellate Authority is cryptic and unreasonable. None of the

issues raised by the petitioner in the appeal were considered or

dealt with.

Shri Vivek Prasad, learned Government Pleader No. 7 does Patna High Court CWJC No.18267 of 2021 dt.27-10-2021

not dispute such position. However, he seeks time to file a counter

affidavit in the matter.

We see no reason as to why time, as prayed for, is granted,

when ex facie we are of the considered view that the Appellate

Authority has failed to exercise the jurisdiction vested, to take a

decision in accordance with law. The order is totally unsustainable

in view of the law, more so in view of the provisions of sub-section

(12) of Section 107 of the Act. Further, the order does not assign

any reason for arriving at the conclusion for modifying the order

passed by the Assessing Authority. It is a settled principle of law

that the impugned order entails civil consequences, inasmuch as,

the petitioner is required to not only pay the amount but also suffer

penal consequences.

As such, leaving all questions of fact and law open, to be

adjudicated by the Appellate Authority, we disposed of the present

petition in the following terms:-

(a) We quash and set aside the impugned order dated

28.03.2021 passed by respondent no.2, namely the Additional

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

Patna in Appeal Case No. GST/PS-02/19-20 (Annexure-5), as also

the summary of the demand in Form GST APL-04 dated

31.03.2021, passed by respondent no.2, namely the Additional Patna High Court CWJC No.18267 of 2021 dt.27-10-2021

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

Patna (Annexure-5/A);

(b) The appeal is restored to its original file and number

position and status;

(c) Petitioner undertakes to appear before the Appellate

Authority i.e. respondent no.2, namely the Additional

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

Patna on 22nd of November, 2021, if possible through digital

mode;

(d) The Appellate Authority shall decide the appeal on

merits after complying with the principles of natural justice;

(e) Opportunity of hearing shall be afforded to the

parties to place on record all essential documents and materials,

if so required and desired;

(f) During pendency of the appeal, no coercive steps

shall be taken against the petitioner.

(g) The Appellate Authority shall pass a fresh order only

after affording adequate opportunity to all concerned, including

the writ petitioner;

(h) Petitioner through learned counsel undertakes to

fully cooperate in such proceedings and not take unnecessary

adjournment;

Patna High Court CWJC No.18267 of 2021 dt.27-10-2021

(i) The Appellate Authority shall positively decide the

appeal afresh on merits expeditiously, preferably within a

period of two months from the date of appearance of the

petitioner;

(j) The Appellate Authority shall pass a speaking order

assigning reasons, copy whereof shall be supplied to the

parties;

(k) Liberty reserved to the petitioner to challenge the

order, if required and desired;

(l) Equally, liberty reserved to the parties to take

recourse to such other remedies as are otherwise available in

accordance with law;

(m) 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;

(n) If possible, proceedings during the time of current

Pandemic [Covid-19] be conducted through digital mode;

(o) We have not expressed any opinion on merits and all

issues are left open;

The instant petition sands disposed of in the aforesaid

terms.

Patna High Court CWJC No.18267 of 2021 dt.27-10-2021

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)

(A. M. Badar, J) P.K.P./Amrendra AFR/NAFR CAV DATE Uploading Date 03.11.2021 Transmission Date