M/S Hiraman Prasad vs The Union Of India
2022 Latest Caselaw 4530 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.11594 of 2022
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M/S HIRAMAN PRASAD Nadaon, Buxar, Bihar through its one of the Partners Sri Hiraman Prasad, Aged about 47 years, Gender Male, Son of Dev Narayan Prasad, Resident of Village/Mohalla Nadaon, Durga Puja Sthal, 119, Nadaon, P.S. Industrial Area, District Buxar.

... ... Petitioner/s

Versus

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

2. The Principal Chief Commissioner, CGST, Central Ravenue Building, Birchand Patel Path, Patna.

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

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

5. The Assistant Commissioner of State Taxes, Buxar Circle, District Buxar.

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

     For the Petitioner/s    :         Mr.Alok Kumar, Advocate
     For Union of India      :         Dr. K.N. Singh, ASG
                                       Mr. Anshuman Singh, Sr. SC, CGST & CX
     For the State                     Mr.Vivek Prasad ( GP 7 )

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

Date : 17-08-2022

Petitioner has prayed for the following relief(s):

"(i) For consequential writ or order for quashing of summary of order issued in Form GST DRC-07 dated 19.03.2020 for the period December 2018 and DRC-7 dated 09.03.2020 for the period July, 2019 whereby the Tax, interest and Penalty to the tune of Rs.2,41,380/- and Rs.

1,22,232/- have been imposed respectively Patna High Court CWJC No.11594 of 2022 dt.17-08-2022

without adjusting the imput Tax Credit already available in the Cash / Credit Ledger of the petitioner, in utter violation of the principle of natural justice as the same was passed without issuance of show cause notice;

(ii) For further issuance of consequential writ or order for quashing of orders dated 18.09.2021 and 07.03.2021 issued vide Memos No. 1459 and 1279 respectively by the Respondent No. As prayed for, list the matter after four weeks. whereby the appeal preferred by the petitioner has been rejected without any application of mind only on the ground that the petitioner did not filed the certified copy of Assessment Order without going into the merit of the case;

(iii) For further issuance of a direction or order restraining the Respondent No. 5 from taking any coercive action for recovery of the amount in demand from the petitioner during the pendency of the present writ application 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."

As prayed for, learned counsel for the petitioner is

permitted to correct the date of the impugned order, which is

mentioned as 7.3.2021, to be read as 7.9.2021.

Accordingly, the date of the order mentioned as 7.3.2021 Patna High Court CWJC No.11594 of 2022 dt.17-08-2022

be read as 7.9.2021.

It is brought to our notice that vide impugned orders dated

18.09.2021 and 07.09.2021 passed by the Respondent No. 4 namely

the Additional Commissioner of State Taxes (Appeals), Patna West

Division, Patna, the appeal of the petitioner against the orders dated

19.03.2020 and 09.03.2020 passed by Respondent No. 5, namely

The Assistant Commissioner of State Taxes, Buxar Circle, Buxar, in

Form GST DRC-07 for the period December, 2018 and July, 2019,

has been rejected on the ground of non-filing of the certified copy of

the assessment orders.

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 and the limitation shall not be allowed

to come in the way. 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) Patna High Court CWJC No.11594 of 2022 dt.17-08-2022

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; (c) 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 ex parte in

nature.

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 orders dated

18.09.2021 and 07.09.2021 passed by the Respondent No. 4

namely the Additional Commissioner of State Taxes (Appeals),

Patna West Division, Patna, the orders dated 19.03.2020 and

09.03.2020 passed by Respondent No. 5, namely The Assistant

Commissioner of State Taxes, Buxar Circle, Buxar, 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 Patna High Court CWJC No.11594 of 2022 dt.17-08-2022

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.

(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;

Patna High Court CWJC No.11594 of 2022 dt.17-08-2022

(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

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;

Patna High Court CWJC No.11594 of 2022 dt.17-08-2022

(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 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/DKS AFR/NAFR CAV DATE Uploading Date 18.08.2022 Transmission Date