Rakesh Roshan A Proprietary ... vs State Of Bihar
2022 Latest Caselaw 2885 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.7187 of 2022
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Rakesh Roshan a proprietary concern having its principal place of Business at Sangrampur Bazar, Sangrampur, Munger, Bihar, 813212 through its Proprietor Rakesh Roshan (Male) (aged about 45 years) son of Shri Om Prakash Bhagat resident of Bhawanipur, Sangrampur, District- Munger, Bihar, 813212.

... ... Petitioner/s

Versus

1. State of Bihar through Commissioner of State Tax, Bihar, Patna having its office at Vikas Bhawan, Patna.

2. Additional Commissioner of State Tax (Appeal), Bhagalpur Division, Bhagalpur.

3. Assistant Commissioner of State Tax, Munger Circle, Munger.

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

For the Petitioner/s : Mrs.Manju Jha, Advocate For the Respondent/s : Mr.Vivek Prasad (GP7) ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 17-05-2022

Petitioner has prayed for the following relief(s):

"i) the Notice dated 19.02.2020 under Section 74 of the Bihar Goods and Services Tax Act, 2017 (hereinafter called the Act) issued by respondent no. 3 raising demand of tax on the ground of excess claim of input tax credit for the period of 2018-19 be quashed.

ii) the order dated 21.03.2020 passed by the Adjudicating Authority for the demand of tax on the ground of excess amount of input tax Patna High Court CWJC No.7187 of 2022 dt.17-05-2022

credit for the period 2018-19 be quashed.

iii) the order in Form GST DRC - 07 dated 21.03.2020 passed by the respondent no. 3 be quashed.

iv) the order dated 26.03.2022 passed by the respondent no. 2 for the period of 2018- 19 dismissing the appeal be quashed.

v) the order in GST DRC - 13 dated 29.03.2022 issued by respondent no. 3 attaching the bank accounts for recovery of the whole of the amount of tax, interest and penalty in dispute be quashed.

vi) for further holding and a declaration that the case of the petitioner is squarely covered by the judgment dted 08.03.2021 in Suo Motu Writ Petition (Civil) No. 3 of 2020 by the Hon'ble Supreme Court of India for extension of Limitation due to COVID- 19 pandemic.

vii) for granting any other relief(s) to which the petitioner is otherwise found entitled to."

Petitioner has prayed for quashing of the notice

dated 19.02.2020 issued by the Assistant Commissioner of

State Tax, Munger Circle, Munger in Reference No.

ZA100320020482K (Annexure- 3 series); order dated

21.03.2020, passed by the Assistant Commissioner of

State Tax, Munger, Bhagalpur, Bihar in Reference No. Patna High Court CWJC No.7187 of 2022 dt.17-05-2022

ZA100320020482K (Annexure- 3 series); summary of the

order in Form GST DRC-07 dated 21.03.2020; order dated

26.03.2022 passed by Respondent No. 2, namely, the

Additional Commissioner of State Tax (Appeal),

Bhagalpur Division, Bhagalpur in Appeal No.

AD100321002599M (Annexure-6); order in Form GST

APL-04 dated 28.03.2022 [Order No.

ZD100322014192D] and the order in Form GST DRC-13

dated 29.03.2022 and 30.03.2022, issued by Respondent

No. 3, namely, the Assistant Commissioner of State Tax,

Munger Circle, Munger (Annexure-7 series).

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 Patna High Court CWJC No.7187 of 2022 dt.17-05-2022

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 reasons sufficient 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. We also find the

authorities not to have adjudicated the matter on the attending

facts and circumstances. All issues of fact and law ought to

have been dealt with, even if the proceedings were to be ex

parte in nature.

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

following mutually agreeable terms:

(a) We quash and set aside the impugned notice

dated 19.02.2020 issued by the Assistant Commissioner of

State Tax, Munger Circle, Munger in Reference No.

ZA100320020482K (Annexure- 3 series); order dated

21.03.2020, passed by the Assistant Commissioner of

State Tax, Munger, Bhagalpur, Bihar in Reference No.

ZA100320020482K (Annexure- 3 series); summary of the Patna High Court CWJC No.7187 of 2022 dt.17-05-2022

order in Form GST DRC-07 dated 21.03.2020; order dated

26.03.2022 passed by Respondent No. 2, namely, the

Additional Commissioner of State Tax (Appeal),

Bhagalpur Division, Bhagalpur in Appeal No.

AD100321002599M (Annexure-6); order in Form GST

APL-04 dated 28.03.2022 [Order No.

ZD100322014192D] and the order in Form GST DRC-13

dated 29.03.2022 and 30.03.2022, issued by Respondent

No. 3, namely, the Assistant Commissioner of State Tax,

Munger Circle, Munger (Annexure-7 series);

(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 Patna High Court CWJC No.7187 of 2022 dt.17-05-2022

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 6th of June, 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 Patna High Court CWJC No.7187 of 2022 dt.17-05-2022

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

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;

Patna High Court CWJC No.7187 of 2022 dt.17-05-2022

(r) 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)

K.C.Jha/DKS AFR/NAFR CAV DATE Uploading Date 18.05.2022 Transmission Date