Om Shanti Construction vs The State Of Bihar
2021 Latest Caselaw 4382 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                Civil Writ Jurisdiction Case No.9115 of 2021
     ======================================================

Om Shanti Construction a proprietory concern having its office at Kameshwari Vihar, Ramna, Sadpura, Muzaffarpur, Bihar through its Proprietor, Vimal Kant Jha (Male) (Aged about 53 years), Son of Late Ram Chandra Jha, Resident of Kameshwari Vihar, P.O. Ramna, Kaji Mohammadpur, Sadpura, Muzaffarpur, Bihar.

... ... Petitioner/s Versus

1. The State of Bihar through the Commissioner of State Tax, having its office at Vikas Bhawan, Bailey Road, Patna.

2. Dy. Commissioner of State Tax, East Circle, Muzaffarpur.

3. Asst. Commissioner of State Tax, East Circle, Muzaffarpur.

4. The Union of India New Delhi.

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

For the Petitioner/s : Mr.D.V.Pathy, Advocate Ms. Manju Jha, 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)

=================================================== (The proceedings of the Court are being conducted by Hon'ble the Chief Justice/ Hon'ble Judges through Video Conferencing from their residential offices/residences. Also, the Advocates and the Staffs joined the proceedings through Video Conferencing from their residences/offices.)

Date : 01-09-2021 Patna High Court CWJC No.9115 of 2021 dt.01-09-2021

Petitioner has prayed for the following relief(s):

The instant petition has been filed for quashing of the

order dated 11.01.2021 (as contained in Annexure-4) in GSTIN/ID

: 10AMRPJ9585G1ZN, the summary of order dated 11.02.2021

(as contained in Annexure-5) in GST DRC-07 (Reference No. :

ZD1001210096249), the demand order dated 11.01.2021 (as

contained in Annexure-6) for the period 2019-20 and the show

cause notice dated 09.12.2020 (as contained in Annexure-2)

passed by Respondent No.3, the Assistant Commissioner of State Patna High Court CWJC No.9115 of 2021 dt.01-09-2021

Tax, East Circle, Muzaffarpur. The orders were 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 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 Patna High Court CWJC No.9115 of 2021 dt.01-09-2021

11.01.2021 (as contained in Annexure-4) in GSTIN/ID :

10AMRPJ9585G1ZN, the summary of order dated 11.02.2021

(as contained in Annexure-5) in GST DRC-07 (Reference No. :

ZD1001210096249), the demand order dated 11.01.2021 (as

contained in Annexure-6) for the period 2019-20 and the show

cause notice dated 09.12.2020 (as contained in Annexure-2)

passed by Respondent No.3, the Assistant Commissioner of

State Tax, East Circle, Muzaffarpur:

(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 Patna High Court CWJC No.9115 of 2021 dt.01-09-2021

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 11th of October, 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 Patna High Court CWJC No.9115 of 2021 dt.01-09-2021

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 aforesaid

terms.

Interlocutory Application(s), if any, also stands Patna High Court CWJC No.9115 of 2021 dt.01-09-2021

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) Ashwini/Sujit AFR/NAFR CAV DATE Uploading Date 06.09.2021 Transmission Date