M/S Shanti Construction And Co vs The State Of Bihar
2022 Latest Caselaw 585 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.12677 of 2021
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M/s Shanti Construction and Co. PAN-ABAFS6068B, having its Principal Place of Business at Shanti Bhawan, Near Bihar Motor Works, Bahadurpur Main Road, Kankarbagh, Patna-800020 through its Partner Praveen Anand, aged about 46 Years (Male) S/o Late Satyadeo Prasad, Shanti Bhawan, Near Bihar Motor Works, Bahadurpur Main Road, Kankarbagh, P.S.-Patrakar Nagar, District-Patna.

... ... Petitioner/s Versus

1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.

2. The State of Bihar, through the Commissioner-Cum-Principal Secretary, Commercial Tax Department, Government of Bihar, Patna.

3. The Principal Secretary, Building Construction Department, Government of Bihar, Patna.

4. The Secretary, Building Construction Department, Government of Bihar, Patna.

5. The Managing Director, Bihar State Building Corporation, Government of Bihar, Patna.

6. The Secretary Department of Revenue, Ministry of Finance, Government of India, New Delhi.

7. The Commissioner-Cum-Principal Secretary, Commercial Tax Department, Government of Bihar, Patna.

8. The Commissioner, CGST and Central Excise, Patna-1 Commissionerate, Patna.

9. The Principal Commissioner, CGST and CX, Patna-I having its Office at 3rd Floor, C.R. Building, Birchand Patel Path, Patna-800001

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

For the Petitioner/s : Mr. Alok Kumar @ Alok Kr Shahi, Advocate For the Respondent/s : Mr. Vikash Kumar, SC-11 ====================================================== 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.) Patna High Court CWJC No.12677 of 2021 dt.24-01-2022

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Date : 24-01-2022

Heard learned counsel for the parties.

Petitioner has prayed for the following relief(s):-

It is contended on behalf of the petitioner that the circular

issued by the Revenue, stipulating a time frame to initiate

proceedings to show cause was not adhered to, prior to issuance of

Demand cum Show Cause Notice dated 15 th of April, 2021

(Annexure-4 Page No. 26) by the Revenue. Further, that in terms

of the said impugned notice, the Revenue has already pre-

determined the amount due and payable by the petitioner.

On the second issue, we are of the considered view that the

petitioner is totally misreading the Demand cum Show Cause Patna High Court CWJC No.12677 of 2021 dt.24-01-2022

Notice for, as is evidently clear from Paragraph Nos. 15, 16 and 17

thereof, it is just a notice to show-cause to the petitioner, affording

opportunity to explain, as to why the income of ₹6,06,24,604/-

(Six crore, six lakh twenty four thousand six hundred and four

only) allegedly suppressed by the petitioner, as was noticed by the

Revenue in collateral proceedings, should not be assessed. It is in

this backdrop petitioner is required to submit all material

evidences in support of the contentions, refuting such allegations

before the appropriate authority.

Dr. K.N. Singh, learned Additional Solicitor General,

clarifies that the petitioner is misconstruing the term "Demand

Cum Show Cause Notice" as captioned in the notice (Annexure-4).

The impugned notice is just a notice to show-cause and not

adjudication of any amount, which the authority necessarily has to

do so after accounting for the response to be filed by the petitioner.

Also, an order in that regard is necessarily required to be passed by

the concerned officer in accordance with law, including assigning

reason.

As such, we are of the considered view that petitioner must

first respond to the show-cause notice and by taking all pleas,

including the one taken before this Court. Also, petitioner shall be

afforded adequate opportunity of hearing, whereafter the authority Patna High Court CWJC No.12677 of 2021 dt.24-01-2022

shall pass an order assigning reasons in accordance with law.

In so far as first contention is concerned, we are also of the

considered view that such plea can be taken before the appropriate

authority and should the appropriate authority find the circular to

be mandatory in nature, obviously the Demand cum Show Cause

Notice would be recalled and/or appropriate action taken in

accordance with law.

As such, we dispose of the present petition in the following

terms:-

(a) Petitioner is directed to appear before the

appropriate authority on 7th of February, 2022 when complete

response annexing all documents in support of the pleas shall

be filed;

(b) The appropriate authority shall take a decision

thereupon expeditiously and preferably within a period of two

months thereafter;

(c) Petitioner undertakes to fully cooperate and not

take any unnecessary adjournment;

(d) Needless to add, liberty reserved to the petitioner to

place on record all relevant materials;

(e) The appropriate authority shall pass a reasoned and

speaking order assigning reasons, after accounting for all the Patna High Court CWJC No.12677 of 2021 dt.24-01-2022

materials placed on record by the parties;

(f) Liberty reserved to the petitioner to take recourse to

such remedies as are otherwise available in accordance with

law, including filing a fresh petition before this Court on the

same and subsequent cause of action;

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

shall be taken against the petitioner.

(h) The Appropriate Authority shall pass a fresh

order only after affording adequate opportunity to all

concerned, including the writ petitioner;

(i) The authority concerned shall decide the case on

merits expeditiously, preferably within a period of two

months from the date of presentation of a copy of this

order;

(j) The authority concerned shall pass a speaking

order assigning reasons, copy whereof shall be supplied to

the parties;

(k) 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;

(l) We have not expressed any opinion on merits Patna High Court CWJC No.12677 of 2021 dt.24-01-2022

and all issues of fact and law are left open;

(m) Should the petitioner find the need to challenge

the order which may be passed, it is always open for the

petitioner to take recourse to such other remedy as is

available in accordance with law, and if the order appears to

be ex facie illegal, institute a fresh petition before this

Court;

(n) If possible, proceedings during the time of

current Pandemic [Covid-19] be conducted through digital

mode;

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 27.01.2022 Transmission Date