Patna High Court

M/S Siddharth Advertising vs The Union Of India on 9 December, 2022

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.16911 of 2022
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M/S Siddharth Advertising Room No. 10/11, Hotel Five Diamond Complex, Frazer Road, Patna through its Proprietor Diljeet Khanna, Aged about 53 Years, Gender Male, Son of Shiva Prasad Khanna, Resident of M-3/8, Road No. 11, Rajendra Nagar, P.S. Kadamkuan, District Patna.

... ... 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 Revenue 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, State Taxes (Appeals), Patna West Division, Patna.

5. The Assistant Commissioner, State Tax, Gandhi Maidan Circle, District-

Patna.

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

For the Petitioner/s : Mr.Alok Kumar, 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 : 09-12-2022

Heard learned counsel for the parties.

The petitioner has prayed for the following relief/s :-

"(i) For issuance of writ or order for quashing of Summary of Order-cum-Demand Patna High Court CWJC No.16911 of 2022 dt.09-12-2022

Notice dated 10.08.2019 and 27.08.2019 in Form GST DRC-07 for the period April 2019 and May 2019 has been issued whereby the Tax, Interest and Penalty to the tune of Rs. 4,37,540.63/- and Rs.,93,075.82/- respectively have been imposed without adjusting the Input 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 writ or order for quashing of order dated 18.10.2022 issued vide Memo No. 1817 and 1818 by the Respondent No. 4, whereby the appeal preferred by the petitioner bearing Appeal No. GST/GM- 02/2022-23 and GST/GM-03/2022-23 have been rejected without any application of mind only on the ground that the petitioner filed the Appeal on the ground of limitation 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 a direction to the Respondents for defreeze/ de-attaching the Bank account of the petitioner firm.

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

The instant petition has been filed for quashing of the

impugned order dated 18.10.2022 issued vide Memo No.1817 and

1818 by Respondent No. 4 namely Additional Commissioner, Patna High Court CWJC No.16911 of 2022 dt.09-12-2022

State Taxes (Appeal), Patna West Division, Patna in Appeal No.

GST/GM-02/2022-23 and GST/GM-03/2022-23, the summary of

orders dated 10.08.2019 and 27.08.2019 passed by the Respondent

No. 5 namely Assistant Commissioner of State Taxes, Gandhi

Maidan Circle, District- Patna issued in form GST DRC-07. The

orders appeared to be ex parte in nature.

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 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) 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 Patna High Court CWJC No.16911 of 2022 dt.09-12-2022

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 order dated

18.10.2022 issued vide Memo No.1817 and 1818 by

Respondent No. 4 namely Additional Commissioner, State

Taxes (Appeal), Patna West Division, Patna in Appeal No.

GST/GM-02/2022-23 and GST/GM-03/2022-23, the summary

of orders dated 10.08.2019 and 27.08.2019 passed by the

Respondent No. 5 namely Assistant Commissioner of State

Taxes, Gandhi Maidan Circle, District- Patna issued 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 Patna High Court CWJC No.16911 of 2022 dt.09-12-2022

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 23.12.2022 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 Patna High Court CWJC No.16911 of 2022 dt.09-12-2022

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;

(p) We are hopeful that as and when petitioner takes

recourse to such remedies, before the appropriate forum, Patna High Court CWJC No.16911 of 2022 dt.09-12-2022

the same shall be dealt with, in accordance with law, with a

reasonable dispatch;