Durain Industries Limited vs The State Of Bihar
2022 Latest Caselaw 2015 Patna

Citation : 2022 Latest Caselaw 2015 Patna
Judgement Date : 5 April, 2022

Patna High Court

Durain Industries Limited vs The State Of Bihar on 5 April, 2022

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.4578 of 2022
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Durain Industries Limited, Second and Third floor, A.P. Complex, Saguna Bailey Road, Near Sahi Darbar Community Hall, Ranjan Path, bailey Road Patna - 801503, through its Authorized Representative, Ratnesh Kumar Tiwari, gender - male, aged about -36 years, S/o S.C. Tiwari, R/o - A.P. Complex, Saguna Bailey Road, Near Sahi Darbar Community Hall, Ranjan Path, Bailey Road Patna - 801503.

... ... Petitioner/s Versus

1. The State of Bihar through, the Principal Secretary Cum Commissioner, Department of State Taxes, Government of Bihar, Patna.

2. The Joint Commissioner of State Taxes, Kadam Kuan Circle, Patna.

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

For the Petitioner/s : Mr.Rajesh Ranjan, Advocate Mr. Pankaj Kumar Sinha, 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)

Date : 05-04-2022

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

"a. For issuance of writ in the nature of certiorari for quashing of the ex-parte order dated 25.02.2022 passed and the summary of order in form GST DRC- 07 dated 30.01.2020 passed by the respondent no. 2 under the Central Goods and Service Tax Act, 2017 (hereinafter referred to as the Central Act, 2017 for short) and Bihar Goods and Services Tax Act, 2017 hereinafter referred to as the Bihar Act, 2017 for short) raising demand of Tax, interest and penalty.

b. For issuance of writ/order/direction restraining the Respondent No. 2 from making any coercive Patna High Court CWJC No.4578 of 2022 dt.05-04-2022

recovery of the tax, interest and penalty demanded in terms of the impugned ex-parte order of assessment during the pendency of the present writ application. c. For holding and a declaration that the impugned order is in teeth of the settled principle of law that no decision passed after due examination of materials on record can be re-opened in absence of any material foreign to the original records, d. For grant of any other relief/s to which the petitioner be found entitled in the facts and circumstances of this case."

This petition has been filed for quashing of order dated

25.02.2022 passed by the respondent no. 2 namely The Joint

Commissioner of State Taxes, Kadam Kuan Circle, Patna in

GST/DRC-13 and summary of order dated 30.01.2020 in Form

GST/DRC-07 for the period 2017-18. The order is 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 Patna High Court CWJC No.4578 of 2022 dt.05-04-2022

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 reason sufficient 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

25.02.2022 passed by the respondent no. 2 namely the Joint

Commissioner of State Taxes, Kadam Kuan Circle, Patna in

GST/DRC-13 and summary of order dated 30.01.2020 in Form

GST/DRC-07 for the period 2017-18;

(b) The petitioner undertakes to deposit 20% of

the amount of the demand raised before the Assessing

Authority. This shall be done within eight weeks;

c) 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 Patna High Court CWJC No.4578 of 2022 dt.05-04-2022

ultimately found that the petitioner had already deposited

up to the extent of twenty percent, the same shall be set off

against the amount to be deposited. Also, if the deposit is

found to be in excess, the same shall be refunded within

two months from the date of passing of the order;

(d) 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;

(e) Petitioner undertakes to appear before the

Assessing Authority on 20.04.2022 at 10:30 A.M.;

(f) The Assessing Authority shall decide the case on

merits after complying with the principles of natural justice;

(g) We also find the authorities not to have

adjudicated the matter on the attending facts and

circumstances. All issues of fact and law ought to have

been dealt with, even if the proceedings were to be ex parte

in nature;

(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 assessment, no coercive Patna High Court CWJC No.4578 of 2022 dt.05-04-2022

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 before this Court, 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

reasonable dispatch;