Ss Sharma Construction And ... vs Commissioner Of Cgst And Central ...
2022 Latest Caselaw 245 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.17481 of 2021

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SS Sharma Construction and Infrastructure Private Limited a Company incorporated Under the Companies Act, 1956 having its Head Office at House No. 3, Road No. 17, S.K. Nagar, Patna. through its Director Anand Keshav (Male) (aged about 41 Years) Son of Shyam Bihari Sharma Resident of S.K. Nagar, Bgicha, House No.-3, Road No. 17, S.K. Nagar, Patna, Bihar-800001.

... ... Petitioner/s

Versus

1. Commissioner of CGST and Central Excise having its Office at Central Revenue Building, (Annexe), Bir Chand Patel Marg, Patna.

2. Joint Commissioner, CGST and Central Excise, Patna-1, Patna.

3. Superintendent CGST and Central Excise, S.K. Puri GST Range, Patna.

... ... Respondent/s

====================================================== Appearance :

For the Petitioner/s : Mr. D.V.Pathy, Advocate For the Respondent/s : Mr. Anshuman Singh, Advocate ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR 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 : 10-01-2022

Heard learned counsel for the parties.

The petitioner has prayed for the following relief/s :- Patna High Court CWJC No.17481 of 2021 dt.10-01-2022

Patna High Court CWJC No.17481 of 2021 dt.10-01-2022

The instant petition has been filed for quashing of the

show cause notice dated 16.04.2019 (as contained in

Annexure-4) and order dated 02.07.2021 (as contained in

Annexure-6) issued by the Respondent No.2 namely Joint

Commissioner, CGST & Central Excise, Patna-1 in DIN-

20210760XU0000444DB8 whereby service tax, interest and

penalty has been imposed upon the petitioner without

considering the written submission and the relevant documents

filed therewith.

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, Patna High Court CWJC No.17481 of 2021 dt.10-01-2022

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 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 notice

dated 16.04.2019 (as contained in Annexure-4) and order

dated 02.07.2021 (as contained in Annexure-6) issued by the

Respondent No.2 namely Joint Commissioner, CGST &

Central Excise, Patna-1 in DIN-20210760XU0000444DB8;

(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 Patna High Court CWJC No.17481 of 2021 dt.10-01-2022

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 28.01.2022 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 Patna High Court CWJC No.17481 of 2021 dt.10-01-2022

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,

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;

Patna High Court CWJC No.17481 of 2021 dt.10-01-2022

(r) If possible, proceedings during the time of

current Pandemic [Covid-19] 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)

( S. Kumar, J) Ashwini/Sujit AFR/NAFR CAV DATE Uploading Date 12.01.2022 Transmission Date