M/S Balram Singh vs The Union Of India
2022 Latest Caselaw 5008 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.15696 of 2022
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M/s Balram Singh Patori, Saharsa, through its Proprietor Balram Singh (Male), Aged about 73 Years, S/o Late Surendra Narayan Singh, R/o- Ward No- 1, Vill and P.O.- Patori, Saharsa, District- Saharsa, Bihar.

... ... Petitioner/s Versus

1. The Union of India through the Secretary Department of Revenue, Ministry of Finance, North Block, New Delhi- 110 001.

2. The Secretary Department of Revenue, Ministry of Finance, North Block, New Delhi- 110 001.

3. The State of Bihar through the Commissioner cum Secretary, Commercial Tax Department, Govt. of Bihar, Patna.

4. The Commissioner cum Secretary, Commercial Tax Department, Govt. of Bihar, Patna.

5. The Joint Commissioner of State Tax, Saharsa Circle, Saharsa.

6. The Assistant Commissioner of State Tax, Saharsa Circle, Saharsa.

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

For the Petitioner/s : Mr.Gyan Shankar, Advocate For the Respondent/s : Dr. K.N.Singh, A.S.G.

Mr. Vikash Kumar, SC 11 ====================================================== 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

Petitioner has prayed for the following relief(s):-

(i) For issuing a writ of certiorari or any other appropriate writ quashing/ setting aside the assessment orders dated 22.01.2021 and 22.01.2021 (Annexure- 1 & 2) passed by Respondent No. 6 for Patna High Court CWJC No.15696 of 2022 dt.09-12-2022

period October 2019 to March 2020 of F.Y 2019-20 whereby and whereunder the ex parte assessment order has been passed for the aforesaid period and thereby a total liability of Rs.56,17,860/- (with breakup as (a) CGST worth Rs.13,07,900/- with interest Rs.1,93,130/- and penalty Rs. 13,07,900/- thereupon; and (b) SGST worth Rs.13,07,900/- with interest Rs.1,93,130/- and penalty Rs. 13,07,900/- thereupon), has been imposed on the petitioner;

(ii) For issuing a writ of certiorari or any other appropriate writ quashing/ setting aside the demand issued in form DRC 07- dated 22.01.2021 (Reference No. 2D1001210196073) (Annexure-3) passed by Respondent No. 6 for October 2019 to March 2020 of F.Y 2019-20 whereby and whereunder the ex-parte demand order DRC 07 have been issued under the CGST/BGST Rules, 2017 for the aforesaid period and through the said DRC-07 an ex parte demand has been raised for the aforesaid period a total liability of Rs.56,17,860/- (with breakup as - (a) CGST worth Rs.13,07,900/- with interest Rs.1,93,130/- and penalty Rs. 13,07,900/- thereupon; and (b) SGST worth Rs.13,07,900/- with interest Rs.1,93,130/- and penalty Rs. 13,07,900/- thereupon), has been imposed on the petitioner;

(iii) For issuing a writ of mandamus or any other appropriate writ directing the Respondents not take any coercive action including recovery from bank account and third parties until pendency of the present writ application;

(iv) For issuing writ of mandamus and thereby directing the Respondents to refund a sum of approx.

Patna High Court CWJC No.15696 of 2022 dt.09-12-2022

Rs. 20,00,000/- which has been seized by the respondents from the cash credit ledger of the petitioner by way of recovery against the total liability of Rs. 56,17,860/-;

(v) For issuance of appropriate direction including the mandamus directing the respondents to pass fresh assessment order for the F.Y. 2019-20 upon considering the annual assessment filed by the petitioner for the said financial year to ascertain the actual tax liability. if any on the petitioner for the period April 2019 to March 2020;

(vi) For holding that the impugned assessment order dated 22.01.2021 & 22.01.2021 (have been issued in most illegal manner by Respondent No.6 before submitting the GSTR- 9/9C and without examining the records and the supporting materials uploaded by the petitioner on its web-portal of GST;

(vii) For passing any such other order/orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."

This petition has been filed for quashing of orders

dated 22.01.2021 and 22.01.2021 (Annexure-1 & 2) passed

by the respondent no. 6 namely The Assistant Commissioner

of State Taxes, Saharsa Circle, Saharsa in GSTIN-

10AJIPS2522A3ZW and Reference No. ZD1001210196073

as also summary of order dated 22.01.2021 passed in GST

DRC-07 for the period 2019-20. The order is ex parte in Patna High Court CWJC No.15696 of 2022 dt.09-12-2022

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. 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 Patna High Court CWJC No.15696 of 2022 dt.09-12-2022

writ petition in the following mutually agreeable terms:

(a) We quash and set aside the impugned orders

dated 22.01.2021 and 22.01.2021 (Annexure-1 & 2)

passed by the respondent no. 6 namely The Assistant

Commissioner of State Taxes, Saharsa Circle, Saharsa in

GSTIN-10AJIPS2522A3ZW and Reference No.

ZD1001210196073 as also summary of order dated

22.01.2021 passed in GST DRC-07 for the period 2019-

20;

(b) The petitioner undertakes to deposit 20%

of the amount of the demand raised before the

Assessing Officer. This shall be done within eight

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 Patna High Court CWJC No.15696 of 2022 dt.09-12-2022

date of passing of the order;

(d) 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;

(e) Petitioner undertakes to appear before the

Assessing Authority on 23.12.2022 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. Patna High Court CWJC No.15696 of 2022 dt.09-12-2022

(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 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 Patna High Court CWJC No.15696 of 2022 dt.09-12-2022

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;

(r) If possible, proceedings 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)

( Partha Sarthy, J) Sujit/Ashwini AFR/NAFR CAV DATE Uploading Date 13.12.2022 Transmission Date