M/S Oasis Creative Construction ... vs The Union Of India
2022 Latest Caselaw 4393 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.11232 of 2022
     ======================================================

M/s Oasis Creative Construction Pvt. Ltd. 203, Baidyanath Place, Jagdeo Path, Bailey Road, Patna - 800014 through its Managing Director Sri Manoj Kumar Mehta, Aged about 45 Years, Gender Male, Son of Shiv Narayan Mehta, Resident of Village Kamalpur, P.S.- Kunauli, District Supaul.

... ... Petitioner/s Versus

1. The Union of India through the Secretary, Ministry of Finance, Government of India, New Delhi.

2. The State of Bihar through the Commissioner, Department of State Taxes, Government of Bihar, Patna.

3. The Additional Commissioner of State Taxes (Appeals), Patna West Division, Patna.

4. The Assistant Commissioner of State Taxes, Danapur Circle, Danapur, District Patna.

... ... Respondent/s

====================================================== Appearance :

For the Petitioner/s : Mr.Alok Kumar, Advocate For the Respondent/s : Dr. K.N. Singh, ASG Mr. Anshuman Singh, Sr. SC., CGST & CX For the State : Mr. Vikash Kumar, SC-11

====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 10-08-2022

Heard learned counsel for the parties.

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

" (i) For issuance of consequential writ or order for quashing of order dated 14.03.2022 issued vide Memo No. 4492 dated 14.03.2022 passed by the Additional Commissioner, State Tax (Appeals), Patna West Division, Patna whereby the Tax, Interest and Penalty imposed by the Assessing Officer has been confirmed;

Patna High Court CWJC No.11232 of 2022 dt.10-08-2022

(ii) For further issuance of consequential writ or order for quashing of unseasoned orders passed by the Assistant Commissioner, State Tax, Danapur Circle, District Patna imposed Tax, Interest and Penalty utilizing the power under Section 74(9) of the CGST/BGST Act, 2017 and the Demand Notice in Form GST DRC-07 dated 07 03 2020 has been issued;

(iii) For further issuance of a direction or order restraining the respondents from taking coercive action for recovery of the amount in demand from the petitioner during the pendency of the present writ petition or for a direction to refund of the part or whole of the amount in case recovered from the Petitioner;

(iv) For grant of any relief or reliefs to which the petitioner is entitled in the facts and circumstances of the case."

Petitioner has prayed for quashing of the impugned

orders passed by the Assistant Commissioner, State Tax,

Danapur Circle, District Patna under Section 74(9) of the

CGST/BGST Act, 2017 (Annexure-1 series); Summary of

the orders in Form GST DRC-07 dated 07.03.2020 in

Reference Nos. ZA10032001D950J, ZA100320010931J,

ZA100320010962E, ZA1003200109690,

ZA1003200109781, ZA100320010991D respectively

(Annexure-2 series) and orders dated 14.03.2022, issued

vide Memo No. 4492 passed by the Additional Patna High Court CWJC No.11232 of 2022 dt.10-08-2022

Commissioner, State Tax (Appeals), Patna West Division,

Patna in Appeal Case Nos. G.S.T./D.N.- 01/2020-21,

G.S.T./D.N.- 02/2020-21, G.S.T./D.N.- 03/2020-21,

G.S.T./D.N.- 04/2020-21, G.S.T./D.N.- 05/2020-21 and

G.S.T./D.N.- 06/2020-21 respectively (Annexure-3).

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 reasons sufficient even

decipherable from the record, as to how the officer could

determine the amount due and payable by the assessee. The Patna High Court CWJC No.11232 of 2022 dt.10-08-2022

order, ex parte in nature, passed in violation of the principles

of natural justice, entails civil consequences. 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.

As such, we dispose of the present writ petition in the

following mutually agreeable terms:

(a) We quash and set aside the impugned orders

passed by the Assistant Commissioner, State Tax, Danapur

Circle, District Patna under Section 74(9) of the

CGST/BGST Act, 2017 (Annexure-1 series); Summary of

the orders in Form GST DRC-07 dated 07.03.2020 in

Reference Nos. ZA10032001D950J, ZA100320010931J,

ZA100320010962E, ZA1003200109690,

ZA1003200109781, ZA100320010991D respectively

(Annexure-2 series) and orders dated 14.03.2022, issued

vide Memo No. 4492 passed by the Additional

Commissioner, State Tax (Appeals), Patna West Division,

Patna in Appeal Case Nos. G.S.T./D.N.- 01/2020-21,

G.S.T./D.N.- 02/2020-21, G.S.T./D.N.- 03/2020-21,

G.S.T./D.N.- 04/2020-21, G.S.T./D.N.- 05/2020-21 and Patna High Court CWJC No.11232 of 2022 dt.10-08-2022

G.S.T./D.N.- 06/2020-21 respectively (Annexure-3);

(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 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; Patna High Court CWJC No.11232 of 2022 dt.10-08-2022

(f) Petitioner undertakes to appear before the

Assessing Authority on 12th of September, 2022 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

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 Patna High Court CWJC No.11232 of 2022 dt.10-08-2022

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 stands disposed of in the

aforesaid terms.

Interlocutory Application(s), if any, stands

disposed of.

Learned counsel for the respondents undertakes Patna High Court CWJC No.11232 of 2022 dt.10-08-2022

to communicate the order to the appropriate authority

through electronic mode.

(Sanjay Karol, CJ)

( S. Kumar, J) veena/rajiv-

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