Patna High Court
Sai Enterprises ... vs The Union Of India on 28 February, 2022
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.2937 of 2022
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Sai Enterprises (Proprietorship) 2, Bijay Kumar Chourasia, Sikandarpur,
Mirjanhat, Bhagalpur, Bihar 812005, through its proprietor namely Bijay
Kumar Chourasia, aged about 56 years, Gender - Male, Son of Banarsi Modi,
Resident of Near Water Tank, Sikanderpur, Maksuspur, Mirjanghat, P.S. -
Maksuspur, District - Bhagalpur, Bihar 812005.
... ... Petitioner/s
Versus
1. The Union of India through the Principal Chief Commissioner of Central
Goods and Service Tax, Government of India, New Delhi.
2. The Principal Commissioner of Central Goods and Service Tax, Government
of India, New Delhi.
3. The Commissioner Central Goods and Service Tax, Government of India,
New Delhi.
4. The State of Bihar, through the Principal Chief Commissioner, GST, State
Tax, Bihar, Patna.
5. The Chief Commissioner State Tax, Bihar, Patna.
6. The Additional Commissioner State Tax (Appeal), Bhagalpur Division,
Bhagalpur.
7. The Deputy Commissioner State Taxes, Bhagalpur Circle, Bhagalpur.
8. The Joint Commissioner State Taxes, Bhagalpur Circle, Bhagalpur.
9. The Assistant Commissioner State Tax, Bhagalpur Circle, Bhagalpur.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Ranjeet Kumar, Advocate
Mr. Santosh Kumar, Advocate
Mr. Pankaj Kumar, Advocate
Mr. Ayush Kumar, Advocate
Mr. Yogesh Kumar, Advocate
For the Respondent/s : Dr. Krishna Nandan Singh, ASG
Mr. Anshuman Singh, Sr. SC CGST & CX
Mr. Sriram Krishna, JC to ASG
Mr. Vikash Kumar, SC-11
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE S. KUMAR
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 28-02-2022
Heard learned counsel for the parties.
Patna High Court CWJC No.2937 of 2022 dt.28-02-2022
Petitioner has prayed for the following relief(s):-
It is brought to our notice that vide impugned order
dated 09.09.2021 passed by the Respondent No. 6 namely
the Additional Commissioner, State Tax (Appeal),
Bhagalpur Division, Bhagalpur in Appeal Case No. (ARN)
AD100320000388X, (Annexure-6), the appeal of the
Patna High Court CWJC No.2937 of 2022 dt.28-02-2022
petitioner against the order dated 25.02.2020, passed by
the Respondent No. 9 namely the Assistant Commissioner
of State Tax, Bhagalpur Circle, Bhagalpur, in GSTIN No.
10AFHPC6919C1Z3 (Annexure-4) and Summary of the
Order in Form GST DRC-07 dated 26.02.2020 in
Reference No. ZA100220027337C (Annexure-5) has been
rejected. Also, the petitioner's contention of applicability
of amendment brought in by virtue of Section 50 had not
been taken into account. Both the orders were 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.
Patna High Court CWJC No.2937 of 2022 dt.28-02-2022
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 enough 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 09.09.2021 passed by the Respondent No. 6 namely
the Additional Commissioner, State Tax (Appeal),
Bhagalpur Division, Bhagalpur in Appeal Case No. (ARN)
AD100320000388X, (Annexure-6), order dated
25.02.2020, passed by the Respondent No. 9 namely the
Patna High Court CWJC No.2937 of 2022 dt.28-02-2022
Assistant Commissioner of State Tax, Bhagalpur Circle,
Bhagalpur, in GSTIN No. 10AFHPC6919C1Z3
(Annexure-4) and Summary of the Order in Form GST
DRC-07 dated 26.02.2020 in Reference No.
ZA100220027337C (Annexure-5);
(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 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;
Patna High Court CWJC No.2937 of 2022 dt.28-02-2022
(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 21st of March, 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 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;
Patna High Court CWJC No.2937 of 2022 dt.28-02-2022
(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, 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 during the time of
current Pandemic [Covid-19] be conducted through
digital mode;
Patna High Court CWJC No.2937 of 2022 dt.28-02-2022
The instant petition stands disposed of in the
aforesaid terms.
Interlocutory Application(s), if any, stands
disposed of.
Learned counsel for the respondents undertakes to
communicate the order to the appropriate authority through
electronic mode.
(Sanjay Karol, CJ)
(S. Kumar, J)
Amrendra/PKP
AFR/NAFR
CAV DATE
Uploading Date 03.03.2022
Transmission Date
