M/S Loha Construction Pvt. Ltd vs The State Of Bihar
2022 Latest Caselaw 43 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.21182 of 2021
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M/s Loha Construction Pvt. Ltd. having its registered office at Jamunia, Post- Sardiha, P.S. Simri Bakhtiyarpur, District- Saharsa through its Managing Director Mr. Laxman Kumar Singh (Male), aged about 31 years, Son of Shri Arbind Kumar Singh, Resident of Jamunia, Post- Sardiha, P.S. Simri Bakhtiyarpur, District- Saharsa, Bihar- 852127.

... ... Petitioner/s

Versus

1. The State of Bihar through the Principal Secretary cum Commissioner, Department of State Taxes, Govt. of Bihar, Patna.

2. The Additional Commissioner of State Taxes (Appeals), Purnea Division, Purnea.

3. The Assistant Commissioner of State Taxes, Saharsa Circle, Saharsa.

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

For the Petitioner/s : Mr.Sanjay Kumar Jha, Advocate For the Respondent/s : Mr.Lalit Kishore (AG) ====================================================== 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 : 04-01-2022

Petitioner has prayed for the following relief(s):

"(i) For issuance of writ in the nature of Certiorari, for quashing of the communication in the form GST APL- 04 dated 18.08.2021 issued by the Respondent No. 2, whereby the appeal preferred by the Petitioner against the Order dated 21.01.2021 passed by the Respondent No. 3 under Section 74 of the Bihar Goods and Services Tax Act, 2017 (hereinafter referred to as the BGST Act, 2017) has been rejected and a summary received demand Patna High Court CWJC No.21182 of 2021 dt.04-01-2022

has been forwarded to the Petitioner.

ii. For issuance of a writ in the nature of certiorari for quashing of the order dated 21.01.2021 passed and issued by the Respondent No. 3, whereby duty demand of Rs. 6,36,335/ along with interest of Rs. 1,04,475/- has been demanded under the Central Goods and Services Tax Act, 2017 (hereinafter referred to as the CGST Act, 2017) and penalty of Rs.6,36,335/- has been imposed under CGST Act, 2017 along with duty demand of Rs. 6,36,335/- and interest of Rs.1,04,475/- has been demanded under the BGST Act, 2017 and penalty of Rs.6,36,335/- has been imposed under BGST Act, 2017.

iii. For further restraining the respondents from making recovery of amount of tax, interest and penalty imposed and raised in terms of Order dated 21.01.2021 passed by the Respondent no. 3.

iv. For holding that the impugned order dated 18.08.2021 passed by the Respondent No. 2 is cryptic, non -speaking and in teeth of Section 107 of the BGST Act, 2017.

v. For any other relief or reliefs for which the Petitioner may be found entitled in the facts and circumstances of this case."

It is brought to our notice that vide impugned order

dated 18.08.2021 passed by the Respondent No. 2 namely the

Assistant Commissioner of State Taxes (Appeal), Purnea Division,

Purnea in Appeal Case No. (ARN) AD10032100397IV, the appeal

of the petitioner against the order dated 21.01.2021 passed by the

A.C.S.T., Saharsa Circle, Saharsa in Reference No.

ZD100121018622C under Section 74 of BGST Act, 2017; has

been rejected.

Learned counsel for the Revenue, states that he has no Patna High Court CWJC No.21182 of 2021 dt.04-01-2022

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 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

18.08.2021 passed by the Respondent No. 2 namely the Patna High Court CWJC No.21182 of 2021 dt.04-01-2022

Assistant Commissioner of State Taxes (Appeal), Purnea

Division, Purnea in Appeal Case No. (ARN)

AD10032100397IV and the order dated 21.01.2021 passed by

the A.C.S.T., Saharsa Circle, Saharsa in Reference No.

ZD100121018622C under Section 74 of BGST Act, 2017;

(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;

(e) We also direct for de-freezing/de-attaching of the

bank account(s) of the writ-petitioner, if attached in reference Patna High Court CWJC No.21182 of 2021 dt.04-01-2022

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

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; Patna High Court CWJC No.21182 of 2021 dt.04-01-2022

(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;

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 Patna High Court CWJC No.21182 of 2021 dt.04-01-2022

communicate the order to the appropriate authority through

electronic mode.

(Sanjay Karol, CJ)

( S. Kumar, J)

K.C.Jha/-

AFR/NAFR
CAV DATE
Uploading Date          08.01.2022
Transmission Date