M/S Hanif Ahmad vs The State Of Bihar
2022 Latest Caselaw 5292 Patna

Citation : 2022 Latest Caselaw 5292 Patna
Judgement Date : 16 December, 2022

Patna High Court

M/S Hanif Ahmad vs The State Of Bihar on 16 December, 2022

           IN THE HIGH COURT OF JUDICATURE AT PATNA
                 Civil Writ Jurisdiction Case No.17131 of 2022
     ======================================================

M/s Hanif Ahmad through its Proprietor, Hanif Ahmad, S/o Abdul Jabbar, aged 52, year Male, resident of Murgitola, Rahmat Nagar, Phulwarisharif, P.S.-Phulwari, District- Patna, Pin - 801505.

... ... Petitioner/s

Versus

1. The State of Bihar through the Commissioner of State Tax, Bihar, New Secretariat, Patna.

2. The Commissioner of State Tax, Bihar, New Secretariat, Patna.

3. The Assistant Commissioner of State Tax, Kadam Kuan Circle, Patna.

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

For the Petitioner/s : Mrs.Archana Sinha @ Archana Shahi, 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.)

Date : 16-12-2022

Petitioner has prayed for following relief(s) : -

"a) For issuance of writ of Certiorari, quashing order dated 4.03.20 (Annexure-2) issued by Respondent no. 3 without giving any opportunity of hearing and violated the principles of natural justice.

b) For defreezing the Bank account no. 11667724876 maintained in the SBI, Vetenary Patna High Court CWJC No.17131 of 2022 dt.16-12-2022

college complex, Patna.

c) For any other consequential relief or reliefs for which the petitioner is found entitled during course of hearing of this writ petition."

It is brought to our notice that vide impugned order

dated 04.03.2020 passed by the Respondent No. 3, namely the

Assistant Commissioner of State Tax, Kadamkuan Circle, Patna,

the input tax credit claim of the petitioner has been rejected and

tax amounting to Rs. 75,57,386.00, including interest and penalty,

has been imposed, without providing any further notice to the

petitioner.

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 Patna High Court CWJC No.17131 of 2022 dt.16-12-2022

petitioner to represent his case; (b) order passed ex parte in

nature, does not assign any sufficient reasons 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 dated

04.03.2020 passed by the Respondent No. 3, namely the

Assistant Commissioner of State Tax, Kadamkuan Circle,

Patna;

(b) The petitioner undertakes to deposit twenty per

cent 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's deposit is 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 Patna High Court CWJC No.17131 of 2022 dt.16-12-2022

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 04.01.2023 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) Opportunity of hearing shall be afforded to the

parties to place on record all essential documents and

materials, if so required and desired;

(h) During pendency of the case, no coercive steps

shall be taken against the petitioner.

(i) The Assessing Authority shall pass a fresh order

only after affording adequate opportunity to all concerned,

including the writ petitioner;

(j) Petitioner through learned counsel undertakes

to fully cooperate in such proceedings and not take

unnecessary adjournment;

(k) The Assessing Authority shall decide the case

on merits expeditiously, preferably within a period of two Patna High Court CWJC No.17131 of 2022 dt.16-12-2022

months from the date of appearance of the petitioner;

(l) The Assessing Authority shall pass a speaking

order, assigning reasons, copy whereof shall be supplied

to the parties;

(m) Liberty reserved to the petitioner to challenge

the order, if required and desired;

(n) Equally, liberty reserved to the parties to take

recourse to such other remedies as are otherwise available

in accordance with law;

(o) 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;