M/S G. Power Solution vs The State Of Bihar
2022 Latest Caselaw 5010 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                 Civil Writ Jurisdiction Case No.15607 of 2022
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M/s G. Power Solution a proprietorship firm having its principal place of business at 1st Floor, 2, Madhuraj, Dr. R.K. Agrawal, Rajendra Path, Patna through its Authorized Signature namely Alok Kumar, aged about 47 years, Male son of Shri Ram Rekha Thakur, resident of Dwarka Nagar, Muzaffarpur presently residing at 2, Madhuraj, Dr. R.K. Agrawal, Rajendra Path, P.S. Gandhi Maidan District- Patna.

... ... Petitioner/s Versus

1. The State of Bihar through the Principal Secretary-cum-Commissioner, State Tax, Government of Bihar, Patna.

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

3. The Joint Commissioner of State Tax, Patna North Circle, Patna.

4. The Assistant Commissioner of State Tax, Patna North Circle, Patna.

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

For the Petitioner/s : Mr.Mohit Agarwal, Advocate Ms. Sushmita Mishra, Advocate Ms. Ananya Maitin, Advocate Mr. Lokesh Kumar, Advocate

For the Respondent/s : 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.) Patna High Court CWJC No.15607 of 2022 dt.09-12-2022

Date : 09-12-2022

Petitioner has prayed for the following relief:-

"(a) For quashing of the Assessment Orders under Section 62 of the Bihar Goods & Service Tax Act, 2017 bearing Ref. No. 6035 to 6046 all dated 19.10.2019 for the respective months of April 2018 to March 2019 of Financial Year 2018-19 passed by the respondent Assistant Commissioner State Tax, Patna North Circle, Patna whereby Assessment order was passed for non-filing of GSTR-3B returns for the months of April 2018 to March 2019 for the Financial Year 2018-19 for being in teeth of Principles of Ntural Justice as the same were passed without issuance of any show cause notice and affording an opportunity fo hearing to the petitioner;

(b) For holding that an opportunity of hearing or to had been afforded to the petitioner before passing of the impugned assessment orders imposing penalty and interest upon the petitioner;

(c) For restraining the respondents to recover the impugned demand during the pendency of the present writ as th same has been passed in violation of principles of natural justice; and for any other relief(s) for which the petitioner may legally be found entitled to in the facts and circumstances of the present case."

This petition has been filed for quashing of orders, all

dated 19.10.2019 passed by the Respondent No. 4 namely The

Assistant Commissioner of State Taxes, Patna North Circle, Patna

in Reference No. 6035, 6036, 6037, 6038, 6039, 6040, 6041, 6042, Patna High Court CWJC No.15607 of 2022 dt.09-12-2022

6043, 6044, 6045 and 6046 respectively for the period 2018-19.

The order is 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. 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: Patna High Court CWJC No.15607 of 2022 dt.09-12-2022

(a) We quash and set aside the impugned orders, all

dated 19.10.2019 passed by the Respondent No. 4 namely The

Assistant Commissioner of State Taxes, Patna North Circle,

Patna in Reference No. 6035, 6036, 6037, 6038, 6039, 6040,

6041, 6042, 6043, 6044, 6045 and 6046 respectively for the

period 2018-19;

(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 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 Patna High Court CWJC No.15607 of 2022 dt.09-12-2022

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.

(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 Patna High Court CWJC No.15607 of 2022 dt.09-12-2022

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;

(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 Patna High Court CWJC No.15607 of 2022 dt.09-12-2022

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