National Insuranc Co Ltd vs The State Of Bihar
2022 Latest Caselaw 439 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                     Civil Writ Jurisdiction Case No.42 of 2022
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National Insuranc Co Ltd having its regional Office at Fourth Floor, Sone Bhawan, Bir Chand Patel Path, District-Patna-800001 through its authorised representative namely Gajendra Kumar Sharma Male aged about 42 Years Son of Karan Lal Sharma, Resident of C-46a Jiwan Park, Uttam Nagar Som Bazar Road, D.K. Mohan garden West Delhi, Delhi-110059 ... ... Petitioner/s

Versus

1. The State of Bihar through the Principal Secretary Cum Commissioner, Department of State Taxes, Government of Bihar, Patna.

2. The Additional Commissioner of State Taxes, (Appeal) Central Division, Patna.

3. The Assistant Commissioner of State Taxes, Patliputra Circle, Patna.

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

For the Petitioner/s : Mr.Gautam Kumar Kejriwal, Advocate For the Respondent/s : Mr.Vivek Prasad ( GP 7 ) ====================================================== 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 : 17-01-2022

Petitioner has prayed for the following relief(s):

"a) for issuance of a writ in the nature of certiorari for quashing of an appellate order dated 13.11.2021 passed by the respondent number 2 and issued vide memo number 669 in Appeal Case Number AD1008210131016 whereby the appeal preferred by the petitioner against the order dated 24.02.2021 passed by the respondent No. 3 has been rejected without appreciating the factual and legal issues contended and raised by the petitioner in appeal;

Patna High Court CWJC No.42 of 2022 dt.17-01-2022

b) For further issuance of a writ in the nature of certiorari for quashing of the order dated 24.02.2021 passed by the respondent number 3 under Section 73 of the Bihar Goods And Services Tax Act, 2017 (hereinafter referred to as the Bihar act 2017 for short)) read with Central Goods And Services Tax Act, 2017 (hereinafter referred to as the central act 2017 for short);

c) For further holding and a declaration that the impugned order dated 24.2.2021 passed by the respondent No. 3 is an erroneous exercise of jurisdiction by the respondent number 3 as the same is not preceded by a proceeding under Sections 61 of the Bihar act 2017 read with central act 2017;

d) For further issuance of a writ or order or direction restraining the respondents from taking any coercive action in terms of section 79 of the Bihar act 2017 read with Central Act, 2017 against the petitioner for recovery of the amount in demand in terms of the impugned order of assessment dated 24.02.2021 passed by the respondent No. 3 during the pendency of the instant writ application or thereafter;

e) For grant of any other relief or reliefs to which the petitioner is found entitled in the facts and circumstances of this case."

It is brought to our notice that vide impugned order

dated 13.11.2021 passed by the Respondent No. 2 namely the

Additional Commissioner of State Taxes (Appeal), Central

Division, Patna in Appeal Case No. AD1008210131016, the appeal

of the petitioner against the order dated 24.02.2021 passed by

Respondent No.3, namely the Assistant Commissioner of State

Taxes, Patliputra Circle, Patna has been rejected, allegedly, without Patna High Court CWJC No.42 of 2022 dt.17-01-2022

appreciating the factual and legal issues contended and raised by

the petitioner in appeal.

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 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 Patna High Court CWJC No.42 of 2022 dt.17-01-2022

the following mutually agreeable terms:

(a) We quash and set aside the impugned order dated

13.11.2021 passed by the Respondent No. 2 namely the

Additional Commissioner of State Taxes (Appeal), Central

Division, Patna in Appeal Case No. AD1008210131016, and

the order dated 24.02.2021 passed by Respondent No.3,

namely the Assistant Commissioner of State Taxes, Patliputra

Circle, Patna;

(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) 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.

(d) Petitioner undertakes to appear before the

Assessing Authority on 7th February, 2022 at 10:30 A.M., if

possible through digital mode;

(e) The Assessing Authority shall decide the case on

merits after complying with the principles of natural justice; Patna High Court CWJC No.42 of 2022 dt.17-01-2022

(f) Opportunity of hearing shall be afforded to the

parties to place on record all essential documents and

materials, if so required and desired;

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

shall be taken against the petitioner.

(h) The Assessing Authority shall pass a fresh order

only after affording adequate opportunity to all concerned,

including the writ petitioner;

(i) Petitioner through learned counsel undertakes to

fully cooperate in such proceedings and not take

unnecessary adjournment;

(j) 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;

(k) The Assessing Authority shall pass a speaking

order, assigning reasons, copy whereof shall be supplied to

the parties;

(l) Liberty reserved to the petitioner to challenge the

order, if required and desired;

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

recourse to such other remedies as are otherwise available

in accordance with law;

Patna High Court CWJC No.42 of 2022 dt.17-01-2022

(n) 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;

(o) We have not expressed any opinion on merits

and all issues are left open;

(p) 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)

K.C.Jha/DKS/-

AFR/NAFR
CAV DATE
Uploading Date          19.01.2022
Transmission Date