Patna High Court

M/S. Shaurya And Company A ... vs The State Of Bihar Through The ... on 21 March, 2022

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.17202 of 2021
     ======================================================

M/s. Shaurya and Company a Proprietorship Firm having its Office at 23, Kaveri Apartment, Bandar Bagicha, Opp Santosh Apartment Frazer Road, Patna, through its Proprietor Gopaal Das Jakhodia, aged about 65 years (Male), Son of Balkishna Das Jakhodia, Residing at Flat No. 23, Kaveri Apartment, Bandar Bagicha, Frazer road Patna, Opp 9 to 9, Phulwari, Patna P.O. - Kotwali, P.S. - Kotwali Patna, District- Patna State Bihar, PIN 800001.

... ... Petitioner/s Versus

1. The State of Bihar through the Commissioner cum Secretary, Commercial Tax Department, Govt. of Bihar, Patna.

2. The Commissioner cum - Secretary, Commercial Tax Department, Govt. of Bihar, Patna.

3. The Additional Commissioner State Tax (Appeals), West Division, Patna.

4. The Joint Commissioner of State Tax, Gandhi Maidan Jurisdiction, Gandhi Maidan, Patna West, Bihar.

5. The Assistant Commissioner of State Tax, Gandhi Maidan Jurisdiction, Gandhi Maidan, Patna West, Bihar.

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

For the Petitioner/s : Mr.Brisketu Sharan Pandey, Adv Mr. Abhishek Kumar, Adv Mr. Vijaya Kumar, Adv For the Respondent/s : Mr.Vikash Kumar ( SC11 ) ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 21-03-2022 Heard learned counsel for the parties.

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

(i) For issuing a writ of certiorari or any other appropriate writ quashing/setting aside the assessment order dated 30.12.2020 (Annexure-P/1) issued by Assistant Commissioner of State Tax, Gandhi Maidan Jurisdiction, Gandhi Maidan, Patna West, Bihar (Respondent No. 5) whereby and whereunder the aforesaid Assessment Officer Patna High Court CWJC No.17202 of 2021 dt.21-03-2022

has quantified the tax liability, interest and penalty for the period April 2018 to March 2019 and thereby has quantified the Tax liability, interest and penalty for the period April 2018 to march 2019 and thereby has imposed cumulative liability of Rs. 4,39,806.51/- for the aforesaid period towards IGST, SGST, CGST tax liability, interest for 547 days @ 1.5% and penalty.

(ii) For issuing a writ of certiorari or any other appropriate writ quashing/setting aside the order dated 30.12.2020 (Annexure-P/2) bearing Reference No. ZD1012200297606 issued under section 73 of GST Act (uploaded on the web portal) issued by Assistant Commissioner of State Tax, Gandhi Maidan Jurisdiction, Gandhi Maidan, Patna West, Bihar (Respondent No. 5) whereby and whereunder the aforesaid Assessment Officer has quantified the tax liability interest and penalty for the period April 2018 to March 2019 and thereby has imposed cumulative liability of Rs., 4,39,806.51 for the aforesaid period towards IGST, SGST, CGST tax liability, interest for 547 days @ 1.5% and penalty.

(iii) For issuing a writ of certiorari or any other appropriate writ quashing/setting aside the Demand DRC- 07 dated 30.12.2020 (Annexure-P/3) bearing Reference No. ZD1012200297606 issued under section issued under rule 142(5) (uploaded on the web portal) issued by Assistant Commissioner of State Tax, Gandhi Maidan Jurisdiction, Gandhi maidan, Patna West, Bihar (Respondent no. 3) whereby and whereunder the aforesaid Assessment Officer has issued demand order in terms of order dated 30.12.2020 (Annexure-P/1) and accordingly raised demand towards tax liability, interest and penalty for the period April 2018 to March 2019 to tune of cumulative liability being Rs. 4,39,806.51 for the aforesaid period towards IGST, SGST, CGST tax liability interest for 547 days @ 1.5% and penalty.

Patna High Court CWJC No.17202 of 2021 dt.21-03-2022

(iv) For issuing a writ of certiorari or any other appropriate writ quashing/setting aside the order dated 17.08.2021 (Annexure-P/4) bearing Memo No. 1075 issued by Additional Commissioner of State Tax (Appeal), Patna West Division, Patna, Bihar (Respondent N. 3) whereby and whereunder the aforesaid Appellate Authority has rejected the appeal preferred by the petitioner against order dated 30.12.2020 (Annexure-P/1) and has affirmed the aforesaid order passed by the Assessment Officer.

(v) For issuing a writ of certiorari or any other appropriate writ quashing/setting aside the summary of demand by the appellate authority issued under FORM APL GST-04 dated 25.08.2021 (Annexure-p/5) bearing order No. ZD1008210169060 issued by Additional Commissioner of State Tax (Appeal), Patna, West Division, Patna Bihar (Respondent no. 3) whereby and whereunder the aforesaid Appellate Authority upon rejection of the appeal has affirmed the cumulative liability of Rs. 4,39,806.51/- for the aforesaid period towards IGST, SGST, CGST tax liability, interest for 547 days @ 1.5% and penalty.

(vi) For issuing writ of mandamus and thereby directing the respondent to refund a sum of Rs. 30,800/- paid by the petitioner as pre-deposit worth 10% of disputed tax amount as needed to be paid as pre-deposit (Section 107(6)(b) of Central Goods and Service Tax Act, 2017) before filing an appeal under CGST/SGST for the month April 2018 to March 2019;

(vii) For issuing writ of mandamus as a consequential relief and thereby directing the Respondents to allow the petitioner amending the return GSTR-01 to the extent that the petitioner may be allowed to upload and take benefit of Credit Note (CN) bearing CN No. 34 relating to original invoice No. S & C/T/174 dated 28.10.2018 which was inadvertently not claimed and reported while filing the Patna High Court CWJC No.17202 of 2021 dt.21-03-2022

GSTR-01 by the petitioner for month of October-2018.

(viii) For issuing writ of a mandamus directing the Respondent to refund to Rs. 77,777.42/- in terms of their own assessment order dated 30.12.2018 (Annexure-P/1) affirmed by the appelate authority while issuing impugned order dated 17.08.2021 (AnnexureP/4) wherein on comparative analysis assessment officer of ITC in 3B vis-a- vis ITC in 2A the petitioner was entitled for refund of Rs. 38,888.71/- under CGST as also refund of Rs. 38,888.71/- under the SGST.

(ix) For holding that the petitioner is entitled to reverse the Input Tax Credit in the month of September 2019(next financial year) which is in terms with section 16(4) of GST Act as also in terms of Circular No. 26/26/2017-GST dated 29.12.2017 issued by Department of Revenue, Central Board of Excise and Custom, GST Policy wing.

(x) For issuing a writ of mandamus or any other appropriate writ directing the Respondents not take any coercive action including recovery from bank account and third parties until pendency of the present writ application;"

It is brought to our notice that vide impugned order dated

17.08.2021 (Annexure P/4) bearing Memo No. 1075, passed by the

Respondent No. 3, namely, the Additional Commissioner of State

Tax (Appeals), West Division, Patna, in Appeal No. (ARN)

AD1002210043795 and summary of demand dated 25.08.2021

(Annexure P/5), in Form GST APL-04, the appeal of the petitioner

against the assessment order dated 30.12.2020, passed by

Respondent No. 5, namely, the Assistant Commissioner of State Patna High Court CWJC No.17202 of 2021 dt.21-03-2022

Tax, Gandhi Maidan Jurisdiction, Gandhi Maidan, Patna West,

Bihar, in GSTIN 10AJWPJ7870Q2ZA, under Section 73 of BGST

Act, 2017; and summary of order dated 30.12.2020 in Form GST

DRC-07 for the tax period Apr 2018 to March, 2019 (Reference

No. ZD1012200297606), has been rejected by a cryptic,

misconceived and non-speaking order.

Learned counsel for the petitioner submits that though

notices have not been dealt with at all nor any reasons assigned

in the order which though runs into 6 pages signed while

determining the liability payable by the petitioner.

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 Patna High Court CWJC No.17202 of 2021 dt.21-03-2022

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

17.08.2021 (Annexure P/4) bearing Memo No. 1075, passed

by the Respondent No. 3, namely, the Additional

Commissioner of State Tax (Appeals), West Division, Patna, in

Appeal No. (ARN) AD1002210043795 and summary of

demand dated 25.08.2021 (Annexure P/5), in Form GST APL-

04, the assessment order dated 30.12.2020, passed by

Respondent No. 5, namely, the Assistant Commissioner of

State Tax, Gandhi Maidan Jurisdiction, Gandhi Maidan, Patna

West, Bihar, in GSTIN 10AJWPJ7870Q2ZA, under Section 73

of BGST Act, 2017; and summary of order dated 30.12.2020 in

Form GST DRC-07 for the tax period Apr 2018 to March,

2019 (Reference No. ZD1012200297606);

(b) We accept the statement of the petitioner that ten Patna High Court CWJC No.17202 of 2021 dt.21-03-2022

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 thirty 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

to the proceedings, subject matter of present petition. This

shall be done immediately.

(f) Petitioner undertakes to appear before the Assessing

Authority on 11.04.2022 at 10:30 A.M., if possible through

digital mode;

(g) The Assessing Authority shall decide the case on Patna High Court CWJC No.17202 of 2021 dt.21-03-2022

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;

(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 Patna High Court CWJC No.17202 of 2021 dt.21-03-2022

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;