M/S Rita Shree Enterprises vs The Union Of India
2023 Latest Caselaw 108 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                  Civil Writ Jurisdiction Case No.18354 of 2022
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M/s Rita Shree Enterprises Having it registered office Near Bharhmdeo Bhawan, Sonu Bhawan, Mithapur B Area, P.S.- Mithapur, District- Patna, Bihar through its Sole Proprietor Mr. Ram Krishna Kumar, aged about 37 years (M), S/o Chandra Prakash Sinha, R/o- Sonu Bhawan, Brahamdev Bhawan, Purandarapur, P.S.- Fulwari, District- Patna.

... ... Petitioner/s Versus

1. The Union of India through the Secretary, Ministry of Finance, Department of Revenue, having its office at Room No.- 46, North Block, P.O. and P.S.- North Block, New Delhi- 110001.

2. Joint Commissioner of State Tax, Patna South Circle, Patna West Division, Third Floor, Kautilya Bhawan, Anta Ghat, Gandhi Maidan, Patna.

3. Assistant Commissioner of State Tax, Patna South Circle, Patna West Division, Third Floor, Kautilya Bhawan, Anta Ghat, Gandhi Maidan, Patna.

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

... ... Respondent/s

====================================================== Appearance :

For the Petitioner/s : Mr.Anurag Saurav, Advocate

For the Respondent/s : Mr.Additional Solicitor General

====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE PARTHA SARTHY ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 09-01-2023

Heard learned counsel for the parties.

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

(i) For issuance of appropriate Patna High Court CWJC No.18354 of 2022 dt.09-01-2023

writ/order/direction for setting aside order

bearing Memo no. 1971 dated 08.11.2022

passed by Additional Commissioner

(Appeal), Patna West Division, Patna in

Appeal Case bearing Appeal Case

No.GST/PS-24/22-23(ARN No.

AD100522001150B) for the financial year

2021-22 whereby and where under the

Appellate Authority upheld the order

bearing Order No. ZD100422006061 dated

21.04.2022 passed by Respondent no.4 and

directed to issue APL-IV to the petitioner.

(ii) For Issuance of an appropriate writ/

order/ direction for setting aside order

bearing reference no. ZD100422006061

dated 21.04.2022 passed by Respondent

No.3 Assistant Commissioner of State Tax

jurisdiction, South Circle, Patna West

Division, Patna, whereby and where under

respondent authority imposed interest and

penalty on the petitioner against a wrong

entry/credit of purchase in the return as Patna High Court CWJC No.18354 of 2022 dt.09-01-2023

IGST, which was not availed by the

petitioner and already remitted back through

DRC 03, but respondent authority imposed

interest as well as penalty against the said

transaction under section 74 (9) of BGST

Act.

(iii) For setting aside order dated 21.04.2022

passed by Assistant Commissioner of State

Tax Jurisdiction, Patna South Circle,Patna

West Division, Patna, has passed an order

under section 74(9) read with rule 142(5) of

BSGST Act read with section 20 of IGST

Act, 2017 whereby and where under

respondent authority imposed interest and

penalty on the petitioner against a wrong

Input Tax Credit in IGST amounting Rs.

14,78,733 on the basis of auto populated

GSTRN-2A in their GSTR3B Return and

Respondent authority not considered the fact

that the said transaction was not availed by

the petitioner and already paid through DRC

03, but respondent authority imposed Patna High Court CWJC No.18354 of 2022 dt.09-01-2023

interest as well as penalty against the said

transaction under section 74 (9) of BGST

Act and a direction was issued to raised

demand in the Form of GST DRC 07.

(iv) For setting aside the demand notice

issued in the Form of DRC 07.

(v) For issuance of an appropriate Writ(s),

and/or direction(s), as Your Lordships may

deem fit and proper I the facts and

circumstances of this case in the interest of

justice.

It is brought to our notice that vide impugned order

dated 08.11.2022 passed by the Respondent No. 4, namely,

Additional Commissioner of State Taxes (Appeal), Patna West

Division, Patna in Appeal Case No. GST/PS-24/22-23 (ARN No.

AD100522001150B), the appeal of the petitioner against the order

dated 21.04.2022 passed by the Respondent No. 3, namely,

Assistant Commissioner of State Taxes, Patna South Circle, Patna

West Division, Third Floor, Kautilya Bhawan, Anta Ghat, Gandhi

Maidan, Patna in Ref. No. ZD100422006061 and the summary of

order dated 21.04.2022 issued in form GST DRC-07, has been Patna High Court CWJC No.18354 of 2022 dt.09-01-2023

rejected. The orders appeared to be ex parte in nature.

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 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.18354 of 2022 dt.09-01-2023

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

08.11.2022 passed by the Respondent No. 4, namely,

Additional Commissioner of State Taxes (Appeal), Patna West

Division, Patna in Appeal Case No. GST/PS-24/22-23 (ARN

No. AD100522001150B), the order dated 21.04.2022 passed

by the Respondent No. 3, namely, Assistant Commissioner of

State Taxes, Patna South Circle, Patna West Division, Third

Floor, Kautilya Bhawan, Anta Ghat, Gandhi Maidan, Patna in

Ref. No. ZD100422006061 and the summary of order dated

21.04.2022 issued in form GST DRC-07;

(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 Patna High Court CWJC No.18354 of 2022 dt.09-01-2023

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 23.01.2023 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 Patna High Court CWJC No.18354 of 2022 dt.09-01-2023

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.18354 of 2022 dt.09-01-2023

(r) If possible, proceedings 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)

( Partha Sarthy, J) ranjan/-

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