Simanchal Detective And Security ... vs The State Of Bihar
2022 Latest Caselaw 4716 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.16372 of 2022
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Simanchal Detective and Security Services Private Limited, a Company registered with the Registrar of Companies, having its registeted Office at 405, Shiv Laxmi Plaza, Main Road, Kankerbagh, Patna, Bihar-800020 through its authorized Signatory namely Rita Sharma (Female), aged about 52 Years, Wife of Manoj Kumar resident of Shiv Nath Bhawan, West of Rajendra Nagar Over Bridge, Police Station-Patrakar Nagar, District-Patna (Bihar).

... ... Petitioner/s Versus

1. The State of Bihar through the Commissioner, Department of State Tax, Government of Bihar, Patna.

2. The Additional Commissioner of State Tax (Appeals) Patna West Division, Patna.

3. The Assistant Commissioner of State Tax, Shahabad, Patna Special, Central, Bihar, Patna.

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

For the Petitioner/s : Mr. Rajeev Shekhar, Advocate Mr. Sanjeev Kumar, Advocate Mr. Pravashankar Mishra, Advocate For the Respondent/s : Mr. Vivek Prasad, GP-7

====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE PARTHA SARTHY ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) ======================================================= (The proceedings of the Court are being conducted by Hon'ble the Chief Justice/ Hon'ble Judges through Video Conferencing from their residential offices/residences. Also, the Advocates and the Staffs joined the proceedings through Video Conferencing from their residences/offices.) =======================================================

Date : 02-12-2022

Heard learned counsel for the parties.

Petitioner has prayed for the following relief(s):- Patna High Court CWJC No.16372 of 2022 dt.02-12-2022

It is brought to our notice that vide impugned order

dated 07.10.2022 passed by Respondent No.2, namely, the

Additional Commissioner of State Tax (Appeals), Patna West Patna High Court CWJC No.16372 of 2022 dt.02-12-2022

Division, Patna, in Appeal Case No. AD10082200088IN

(Annexure-6); order in Form GST APL-02 dated 10.10.2022 in

Reference No. ZD1010220033886 (Annexure-7), the appeal of

the petitioner against the order dated 26.12.2021 passed by

Respondent No. 3, namely, the Assistant Commissioner of

State Tax, Shahabad, Patna Special, Central, Bihar, Patna in

Reference No. ZD101221015667Y (Annexure-3) and the

Summary of the order in Form GST DRC-07 dated 26.12.2021

(Annexure-4) has been rejected merely on the grounds of

being barred by limitation. Both the orders were ex parte in

nature.

In our considered view, the delay stands sufficiently

explained on account of COVID-19 restrictions.

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 Patna High Court CWJC No.16372 of 2022 dt.02-12-2022

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. 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 order dated

07.10.2022 passed by Respondent No.2, namely, the

Additional Commissioner of State Tax (Appeals), Patna West

Division, Patna, in Appeal Case No. AD10082200088IN

(Annexure-6); order in Form GST APL-02 dated 10.10.2022 in

Reference No. ZD1010220033886 (Annexure-7); order dated Patna High Court CWJC No.16372 of 2022 dt.02-12-2022

26.12.2021 passed by Respondent No. 3, namely, the Assistant

Commissioner of State Tax, Shahabad, Patna Special, Central,

Bihar, Patna in Reference No. ZD101221015667Y (Annexure-

3) and the Summary of the order in Form GST DRC-07 dated

26.12.2021 (Annexure-4);

(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 contentions 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 Patna High Court CWJC No.16372 of 2022 dt.02-12-2022

to the proceedings, subject matter of present petition. This

shall be done immediately;

(f) Petitioner undertakes to appear before the Assessing

Authority on 26th of December, 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. Also, opportunity to place on record all essential

documents and materials, if so required and desired, shall

be granted;

(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; Patna High Court CWJC No.16372 of 2022 dt.02-12-2022

(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 be conducted

through digital mode;

The instant petition stands disposed of in the

aforesaid terms.

Interlocutory Application(s), if any, shall stand

disposed of.

Learned counsel for the respondents undertakes Patna High Court CWJC No.16372 of 2022 dt.02-12-2022

to communicate the order to the appropriate authority

through electronic mode.

(Sanjay Karol, CJ)

(Partha Sarthy, J) Amrendra/PKP AFR/NAFR CAV DATE Uploading Date 06.12.2022 Transmission Date