Patna High Court

Umesh Prasad Singh vs The Union Of India on 8 September, 2021

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                 Civil Writ Jurisdiction Case No.14124 of 2021
     ======================================================

Umesh Prasad Singh, S/o Ramyad Singh, Road No. 04, Mahesh Nagar, S.K. Puri Park, Proprietor at M/s Avinash Kumar having its office at House No. 88, Gandhi Nagar, Boring Road, Near Shiv Kunj Apartment, P.O.- G.P.O., District- Patna.

... ... Petitioner/s Versus

1. The Union of India through the Secretary, Ministry of Finance, Department of Revenue, having its office at Room No. 46, North Block, P.O. and P.S. North Block, New Delhi- 110001.

2. The Central Board of Indirect Taxes and Customs, through its Chairman, Ministry of Finance, Department of Revenue, having its office at North Block, P.O. and P.S. North Block, New Delhi- 110001.

3. The State of Bihar through the Commissioner, Commercial Tax Department, Government of Bihar, Patna.

4. The Joint Commissioner of State Tax, Patna Central, Patna West, Bihar.

5. The Assistant Commissioner of State Tax, Patna Central, Patna West, Bihar.

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

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

For the Petitioner/s : Mr.Anurag Saurav, Advocate For the Respondent/s : Mr. Dr. K. N. Singh, ASG Mr. Anshuman Singh, CGC Mr. Vikash Kumar, SC-11 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) ======================================================= Patna High Court CWJC No.14124 of 2021 dt.08-09-2021

(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 : 08-09-2021

Petitioner has prayed for the following relief(s): Patna High Court CWJC No.14124 of 2021 dt.08-09-2021

Patna High Court CWJC No.14124 of 2021 dt.08-09-2021

It is brought to our notice that vide impugned order

dated 25th of February, 2021 passed by the Respondent No. 6,

namely the Additional Commissioner of State Tax (Appeal), Patna

West Division, Patna in Reference Number ZD100221013697Y

(Annexure-4), the appeal of the petitioner against the order dated

04.03.2020 passed by the Respondent No. 5 namely Assistant

Commissioner of State Tax, Patna Central, Patna West, Bihar, in

GSTIN-10BASPS4258M1Z4 (Annexure-2) has been rejected

merely on the grounds of being barred by limitation.

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

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 Patna High Court CWJC No.14124 of 2021 dt.08-09-2021

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

25th of February, 2021 passed by the Respondent No. 6, namely

the Additional Commissioner of State Tax (Appeal), Patna West

Division, Patna in Reference Number ZD100221013697Y

(Annexure-4), the order dated 04.03.2020 passed by the

Respondent No. 5 namely Assistant Commissioner of State Tax,

Patna Central, Patna West, Bihar, in GSTIN-10BASPS4258M1Z4

(Annexure-2) and order dated 05.03.2020, passed by Respondent

no.5, the Assistant Commissioner of State Tax, Patna Central,

Patna West, Bihar in Reference No. ZA100320005510S

(Annexure-3);

(b) We accept the statement of the petitioner that ten Patna High Court CWJC No.14124 of 2021 dt.08-09-2021

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;

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 petition. This shall be

done immediately.

(f) Petitioner undertakes to appear before the

Assessing Authority on 22nd of September, 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 Patna High Court CWJC No.14124 of 2021 dt.08-09-2021

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;

(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 Patna High Court CWJC No.14124 of 2021 dt.08-09-2021

recourse to such remedies, before the appropriate forum, the same

shall be dealt with, in accordance with law, with a reasonable

dispatch;