M/S Livguard Energy Technologies ... vs The State Of Bihar
2022 Latest Caselaw 4559 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.11584 of 2022
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M/s Livguard Energy Technologies Pvt. Ltd. a company registered under the provisions of the Companies Act, 1956, having its registered office at Plot No. 221, Udyog Vihar phase I, Gurfaon, Gurugram, Haryana and place of business at Plot No. 1254, Khata No. 575, Khesra No. 1249, Besides Mahabir Cancer Sansthan, Main Khagul Road, Phulwarisarif, Patna through its Authorizes Signatory, Subhrajit Ghosh, Male, Aged about 41 years son of Shri Sudhangshu Kumar Gosh, resident of H.No. D- 758, Ground Floor, P.S. Chittranjan Park, District- New Delhi.

... ... Petitioner/s Versus

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

2. The Principal Secretary-cum- Commissioner, State Taxes, Government of Bihar, Patna.

3. The Joint Commissioner of State Taxes, Patliputra Circle, Commercial Tax Department, Bihar.

4. The Deputy Commissioner of State Taxes, Patliputra Circle, Commercial Tax Department, Bihar.

5. The Assistant Commissioner of State Taxes, Patliputra Circle, Commercial Tax Department, Bihar.

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

For the Petitioner/s : Mr. S. D. Sanjay, Sr. Advocate Mr. Mohit Agarwal, 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 : 18-08-2022 Heard learned counsel for the parties.

The petitioner has prayed for the following relief/s :- Patna High Court CWJC No.11584 of 2022 dt.18-08-2022

Patna High Court CWJC No.11584 of 2022 dt.18-08-2022

It is brought to our notice that vide impugned order

dated 24.02.2021 passed by the Respondent No. 5, namely, the

Assistant Commissioner of State Taxes, Patliputra Circle,

Commercial Tax Department, Bihar in Reference No.

ZD1002210111357A (GSTIN 10AACCL6687P1ZO) under Section

73(I) of BGST Act, 2017 and summary of order in Form GST

DRC-07 dated 24.02.2021 (Ref. No. ZD1002210130140), for the Patna High Court CWJC No.11584 of 2022 dt.18-08-2022

tax period 2018-19, a demand of Rs.46,40,289/- has been raised.

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 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 Patna High Court CWJC No.11584 of 2022 dt.18-08-2022

dated 24.02.2021 passed by the Respondent No. 5,

namely, the Assistant Commissioner of State Taxes,

Patliputra Circle, Commercial Tax Department, Bihar

in Reference No. ZD1002210111357A (GSTIN

10AACCL6687P1ZO) under Section 73(1) of BGST

Act, 2017 and summary of order in Form GST DRC-

07 dated 24.02.2021 (Ref. No. ZD1002210130140);

(b) The petitioner undertakes to deposit 20% of

the amount of the demand raised 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

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 Patna High Court CWJC No.11584 of 2022 dt.18-08-2022

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 02.09.2022 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) 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 steps shall be taken against the petitioner;

(j) The Assessing Authority shall pass a fresh

order only after affording adequate opportunity to Patna High Court CWJC No.11584 of 2022 dt.18-08-2022

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;

(q) We have not expressed any opinion on merits

and all issues are left open;

Patna High Court CWJC No.11584 of 2022 dt.18-08-2022

(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) Ashwini/Sujit AFR/NAFR CAV DATE Uploading Date 22.08.2022 Transmission Date