Kalptaru Power Transmission Ltd vs The State Of Bihar
2022 Latest Caselaw 4531 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                  Civil Writ Jurisdiction Case No.11580 of 2022
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Kalptaru Power Transmission Ltd. having its place of business at 14, Shiv Sadan Lane, North S.K. Puri, Patna through its authorized representative Ketan Dhansukhlal Mehta aged about 58 years, son of Dhansukhlal resident of 302, Vajradeep Apartment, Opposite Deepanand Apartment, Mani Nagar, Ahmedabad City, Ahmedabad, Gujarat-380008.

... ... Petitioner/s

Versus

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

2. The Additional Commissioner of State Taxes (Appeals) Central Division, Patna.

3. The Assistant Commissioner of State Taxes, Patliputra Circle, Patna (Financial Year - 2018 - 2019).

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

For the Petitioner/s : Mr.Gautam Kumar Kejriwal, Advocate Mr. Alok Kumar Jha, 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)

Date : 17-08-2022

Petitioner has prayed for the following relief(s):

"a) For issuance of writ in the nature of certiorari for quashing of the order dated 09.05.2022 issued vide memo number 276[Patna by the respondent number 2 (hereinafter referred to as the appellate authority for short) whereby the appeal Patna High Court CWJC No.11580 of 2022 dt.17-08-2022

preferred by the petitioner under section 107 of the Central Goods And Services 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) has been rejected;

b) For issuance of writ or order in the nature of certiorari for quashing of the order dated 22.02.2021 and rectification of order dated 06.04.2021 passed by the respondent number 3 (hereinafter referred to as the assessing authority short) under section 73 and 161 of the central act 2017 and Bihar act 2017 and also for quashing of the summary of order issued in form GST DRC - 07 dated 22.02.2021 passed by the same respondent assessing authority.

c) For further restraining the respondents from taking any coercive action against the petitioner for recovery of the amount of tax and interest in terms of the impugned orders during the pendency of the present application;

d) For further holding and a declaration that mere absence of auto populated GSTR - 2A resulting in mismatch with the return filed by the petitioner in form GSTR - 3B cannot deprive the petitioner from the benefit of input tax credit;

e) For further holding and a declaration that the petitioner cannot be deprived of the benefit of input tax credit for Patna High Court CWJC No.11580 of 2022 dt.17-08-2022

the defaults committed by the supplier/seller as the taxes paid by the petitioner to such supplier/seller constitutes due discharge of liability from the ends of the petitioner and also that such payment of tax to the supplier/seller is as good as payment of tax to the government insofar as the true purport and meaning of section 16 (2) (c) of the central act 2017 and Bihar act 2017 is concerned;

f) For grant of any other relief or reliefs to which the petitioner is found entitled in the facts and circumstances of this case."

It is brought to our notice that vide impugned order

dated 09.05.2022 passed by the Respondent No. 2 namely the

Additional Commissioner of State Taxes (Appeals), Central

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

22.02.2021 passed by Respondent No. 3, namely The Assistant

Commissioner of State Taxes, Patliputra Circle, Patna, under

Section 73 and 161 of CGST/BGST Act, 2017; and summary of

order dated 22.02.2021 in Form GST DRC-07 for the financial

year 2018-19, has been rejected by an ex parte order.

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 Patna High Court CWJC No.11580 of 2022 dt.17-08-2022

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 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 impugneds order dated Patna High Court CWJC No.11580 of 2022 dt.17-08-2022

09.05.2022 passed by the Respondent No. 2 namely the

Additional Commissioner of State Taxes (Appeals), Central

Division, Patna, the order dated 22.02.2021 passed by

Respondent No. 3, namely The Assistant Commissioner of

State Taxes, Patliputra Circle, Patna, under Section 73 and

161 of CGST/BGST Act, 2017; and summary of order dated

22.02.2021 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 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;

Patna High Court CWJC No.11580 of 2022 dt.17-08-2022

(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;

(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 Patna High Court CWJC No.11580 of 2022 dt.17-08-2022

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;

(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 Patna High Court CWJC No.11580 of 2022 dt.17-08-2022

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