M/S Sri Krishna Sales Agency vs The State Of Bihar
2022 Latest Caselaw 3992 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.9969 of 2022
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M/s Sri Krishna Sales Agency having office at Post Office GPO, Chistion Colony, Lodipur, Patna, Bihar-800001 through its proprietor Mr. Sanjiv Sahay, aged about 55 years, Male, son of Late Shankar Sahay, resident of Christion Colony, Lodipur, Patna, Bihar-800001.

... ... Petitioner/s

Versus

1. The State of Bihar through Secretary cum Commissioner, State Taxes, Government of Bihar, Vikash Bhawan, Bailey Road, Patna-800001.

2. The Commissioner of Central GST and Central Excise Patna-1, 3rd Floor, Kendriya Rajaswa Bhawan (Annexe Building), Bir Chand Patel Path, Patna- 800001.

3. Additional Commissioner of State Tax (Appeal), Patna West Division, Patna.

4. The Deputy Commissioner of State Tax, Patna Central Division, Patna.

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

For the Petitioner/s : Mr. Alok Kumar, Advocate Mr.Rajeev Shekhar, Advocate For the State : Mr.Vikash Kumar (SC11) For the Union of India (CGST): Dr. K.N. Singh, ASG Mr. Anshuman Singh, Sr. S.C. CGST & CX ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 27-07-2022

Petitioner has prayed for the following relief(s):

"i) To issue an appropriate writ, order or direction quashing the order of Appeal passed by the Additional Commissioner of State Tax (Appeal), Patna West Division, Patna (Annexure-3) to this Writ Application) under Section 107 of the Goods and Services Act, 2017 read with rule 108(3) Goods and Services Patna High Court CWJC No.9969 of 2022 dt.27-07-2022

Rules, 2017 whereby the petitioner's Appeal has been dismissed on the ground of delay.

ii) To issue an appropriate writ, order or direction quashing the order of Assessment passed by Deputy Commissioner of State Tax, Patna Central Division, Patna, (Annexure-2 to this Writ Application) under Section 73 of the Bihar Goods and Services Act, 2017, Whereby the petitioner's has been assessed ex-parte in Violation of the Principal of Natural Justice.

Iii) To issue direction to the authorities concern not to realize the amount from the HDFC bank account (Exhibition Road, Branch) located at Exhibition Road, Patna which has been seized in pursuance of the order of Assessment passed under section 73 of the Bihar Goods and Services Act, 2017.

iv) To grant any other relief or reliefs to which the petitioner is entitled in the facts and circumstances of the case."

It is brought to our notice that vide impugned order

dated 17.03.2022 passed by the Respondent No. 3 namely the

Additional Commissioner of State Tax (Appeal), Patna West

Division, Patna, in Case No. ARN AD10022000793W, the appeal

of the petitioner against the order dated 08.08.2019 passed by

Respondent No. 4, namely The Deputy Commissioner of State

Tax, Patna Central Division, Patna under Section 73 of BGST Act,

2017; has been rejected on the ground of the same being barred by Patna High Court CWJC No.9969 of 2022 dt.27-07-2022

limitation.

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 and the limitation shall not be

allowed to come in the way. 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; (c) We also find the authorities not to have

adjudicated the matter on the attending facts and circumstances. Patna High Court CWJC No.9969 of 2022 dt.27-07-2022

All issues of fact and law ought to have been dealt with, even if

the proceedings were ex parte in nature.

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

17.03.2022 passed by the Respondent No. 3 namely the

Additional Commissioner of State Tax (Appeal), Patna West

Division, Patna, in Case No. ARN AD10022000793W, and the

order dated 08.08.2019 passed by Respondent No. 4, namely

The Deputy Commissioner of State Tax, Patna Central

Division, 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) 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 Patna High Court CWJC No.9969 of 2022 dt.27-07-2022

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 29th of August, 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 Patna High Court CWJC No.9969 of 2022 dt.27-07-2022

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;

(r) If possible, proceedings during the time of

current Pandemic [Covid-19] be conducted through digital

mode;

Patna High Court CWJC No.9969 of 2022 dt.27-07-2022

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 29.07.2022 Transmission Date