M/S. Aditya Polytechnic Private ... vs The State Of Bihar
2021 Latest Caselaw 4522 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.15661 of 2021
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M/s. Aditya Polytechnic Private Limited having its office at Mezzaine Floor, Surya Vihar Apartment, Exhibition Road, Patna, Bihar, 800001 through its Director, Ankur Palriwal (Male), Aged About 36 Years, S/o Lakshman Kumar Palriwal Residing at Flat No. 601, 6th Floor, B- Block, Aary Samaj Road, Jeevan Sri Inclev, Road no 4, Danapur-Cum- Khagaul, P.S.- Danapur, District Patna Bihar, 801503

... ... Petitioner/s

Versus

1. The State of Bihar through the Commissioner cum Secretary, Commercial Tax Department, Govt. of Bihar, Patna.

2. The Commissioner cum Secretary, Commercial Tax Department, Govt. of Bihar, Patna.

3. The Joint Commissioner of State Tax, Gandhi Maidan Jurisdiction, Gandhi Maidan, Patna West, Bihar.

4. The Additional Commissioner State Tax (Appeals), West Division, Patna.

5. The Assistant Commissioner of State Tax, Gandhi Maidan Jurisdiction, Gandhi Maidan, Patna West, Bihar.

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

For the Petitioner/s : Mr.Brisketu Sharan Pandey, Advocate Mr. Madan Kumar, Advocate Mr. Vijay Kumar Singh, Advocate Mr. Abhishek Kumar, Advocate For the Respondent/s : Mr.Vivek Prasad (GP 7) ====================================================== 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 Patna High Court CWJC No.15661 of 2021 dt.08-09-2021

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.15661 of 2021 dt.08-09-2021

Patna High Court CWJC No.15661 of 2021 dt.08-09-2021

It is brought to our notice that vide impugned order

dated 18.03.2020 passed by the Respondent No. 4 namely the

Additional Commissioner of State Tax (Appeals), West Division,

Patna in Case No. GST/GM/65/19-20/Memo No. 379, the appeal of

the petitioner against the order dated 14.10.2019 (order No. 1296)

passed by respondent No.5, namely the Assistant Commissioner of

State Tax, Gandhi Maidan Jurisdiction, Gandhi Maidan, Patna

West, and summary of order dated 16.10.2019 in Reference Patna High Court CWJC No.15661 of 2021 dt.08-09-2021

No.ZA101019002200Q, for the month of August, 2019 under Rule

73(5) of the CGST/BGST Rules, 2017 in Form GST DRC-07, 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

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 Patna High Court CWJC No.15661 of 2021 dt.08-09-2021

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 vide impugned order

dated 18.03.2020 passed by the Respondent No. 4 namely the

Additional Commissioner of State Tax (Appeals), West

Division, Patna in Case No. GST/GM/65/19-20/Memo No.

379, the order dated 14.10.2019 (order No. 1296) passed by

respondent No.5, namely the Assistant Commissioner of State

Tax, Gandhi Maidan Jurisdiction, Gandhi Maidan, Patna West,

and summary of order dated 16.10.2019 in Reference

No.ZA101019002200Q, for the month of August, 2019 under

Rule 73(5) of the CGST/BGST Rules, 2017 in Form GST

DRC-07;

(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 Patna High Court CWJC No.15661 of 2021 dt.08-09-2021

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 25th 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 Patna High Court CWJC No.15661 of 2021 dt.08-09-2021

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

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;

Patna High Court CWJC No.15661 of 2021 dt.08-09-2021

(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.

Learned counsel for the respondents undertakes to

communicate the order to the appropriate authority through

electronic mode.

(Sanjay Karol, CJ)

( S. Kumar, J)

K.C.Jha/-

AFR/NAFR
CAV DATE
Uploading Date          15.09.2021
Transmission Date