Devendra Sah vs The Union Of India
2022 Latest Caselaw 2020 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.4406 of 2022
     ======================================================

Devendra Sah, Son of Rajendra Prasad Sah, Resident of Raghunathpur, Ward No. 2, Supaul, Raghunathpur Bihar, District - Supaul.

... ... Petitioner/s

Versus

1. The Union of India, through the Principal Chief Commissioner of Central Tax, Government of India, New Delhi.

2. The Principal Commissioner of Central Tax, Government of India, New Delhi.

3. The Commissioner Central Tax, Government of India, New Delhi.

4. The State of Bihar, through the Principal Chief Commissioner, State Tax, Bihar, Patna.

5. The Chief Commissioner, State Tax, Bihar, Patna.

6. The Assistant Commissioner of State Tax, Supaul, Purnea.

7. The Deputy Commissioner Supaul Circle, Supaul.

8. The Additional Commissioner (Appeal) Purnea Division, Purnea.

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

For the Petitioner/s : Mr.Ranjeet Kumar, Advocate Mr. Santosh Kumar, Advocate Mr. Yogesh Kumar, Advocate Mr. Ayush Kumar, Advocate Mr. Kanisk Kaustubh, Advocate For the Respondent/s : Mr. Vikash Kumar, SC-11 Mr. Anshuman Singh, Sr. SC, CGST & CX ====================================================== 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):-

"i. For setting aside the order dated 08.03.2020, passed by the Assistant Commissioner, State Tax Supaul Circle, Supaul, for the month of February 2018 whereby the tax, Patna High Court CWJC No.4406 of 2022 dt.05-04-2022

interest and penalty has been imposed upon the petitioner u/s 73 of the Bihar Goods and Services Tax Act, 2017 even without waiting for 30 days statutory time mentioned in the show cause notice dated 08.02.2020 itself wherein the petitioner was granted time up till 08.03.2020, but the final order was passed without waiting for 08th March, 2020, which is in gross violation of Section 73, sub-clause (8) of the Bihar Goods and Services Tax Act, 2017 as well as in gross violation of Principle of Natural Justice.

ii. For setting aside the Consequential DRC 07 Dated 08.03.2020 for Rs. 223990.96

iii. For setting aside the order dated 05.07.2021, passed by Additional Commissioner (Appeal) State Taxes, Purnea Division, Purnea as contained in Memo No. 511 dated 05.07.2021, whereby the appeal filed by the petitioner was rejected ex-party.

iv. For any other relief for which the petitioner may be deemed entitled to."

Undisputedly, minimum statutory period of 30 days

mandated under the provisions of Section 74(A) of CGST/BGST

Act, 2017 was not afforded to the petitioner for making payment

due and prior to the expiry of 30 days, the assessing officer

proceeded to pass the order, ex parte in nature. The notice dated

08.02.2020 (Annexure-1) directed the petitioner to file reply on Patna High Court CWJC No.4406 of 2022 dt.05-04-2022

08.03.2020 whereas the final order was passed on 08.03.2020

itself which was within the period of 30 days. It is the mandate

of law that 30 days' period has to be afforded to the parties,

which was not done in the instant case. Against the final order

dated 08.03.2020, the petitioner preferred an appeal which was

rejected ex parte vide order dated 05.07.2021 without

considering the contentions raised in the appeal.

As such, on this ground alone, we quash the notice

dated 08.02.2020 (Annexure-1), the order of assessment dated

08.03.2020 (Annexure-2) as also the appellate order dated

05.07.2021, with the direction to the assessing officer to issue a

fresh notice in the light of the statutory provisions and pass an

appropriate order in accordance with law. All proceedings be

positively complied with in these matters.

Petition is disposed of in the following terms:

(a) 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;

(b) Further the petitioner undertakes to additionally

deposit ten per cent of the amount of the demand raised Patna High Court CWJC No.4406 of 2022 dt.05-04-2022

before the Assessing Officer. This shall be done within four

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

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;

(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 19th of April, 2022 at 10:30 A.M., if

possible through digital mode;

(f) The Assessing Authority shall decide the case on

merits after complying with the principles of natural justice;

(g) Opportunity of hearing shall be afforded to the

parties to place on record all essential documents and

materials, if so required and desired;

(h) During pendency of the case, no coercive steps

shall be taken against the petitioner. Patna High Court CWJC No.4406 of 2022 dt.05-04-2022

(i) The Assessing Authority shall pass a fresh order

only after affording adequate opportunity to all concerned,

including the writ petitioner;

(j) Petitioner through learned counsel undertakes to

fully cooperate in such proceedings and not take

unnecessary adjournment;

(k) 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;

(l) The Assessing Authority shall pass a speaking

order, assigning reasons, copy whereof shall be supplied to

the parties;

(m) Liberty reserved to the petitioner to challenge

the order, if required and desired;

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

recourse to such other remedies as are otherwise available

in accordance with law;

(o) 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;

(p) We have not expressed any opinion on merits Patna High Court CWJC No.4406 of 2022 dt.05-04-2022

and all issues are left open;

(q) If possible, proceedings during the time of

current Pandemic [Covid-19] be conducted through digital

mode;

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/-DKS AFR/NAFR CAV DATE Uploading Date 11.04.2022 Transmission Date