Shiv Kumar Yadav vs The State Of Bihar
2023 Latest Caselaw 132 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.18111 of 2022
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Shiv Kumar Yadav Son of Shankar Prasad Yadav Resident of Village and Post-Office Saraiya, Police-Station-Gautambudh Nagar, District-Siwan.

... ... Petitioner/s Versus

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

2. The Commissioner-Cum-Secretary State Tax, Government of Bihar Patna.

3. The Special Commissioner of State Tax, Government of Bihar Patna.

4. The Additional Commissioner of State Tax, Government of Bihar Muzaffarpur.

5. The District Magistrate Siwan.

6. The joint Commissioner of State Tax, Government of Bihar Circle Chapra.

7. The joint Commissioner of State Tax, Government of Bihar Siwan.

8. The Assistant Commissioner of State Tax, Circle Siwan

9. The District Education Officer, Siwan.

10. The District Programme Officer, Primary Education-Cum-Surva Shiksha Abhiyan Siwan.

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

For the Petitioner/s : Mr. Shambhu Prasad Yadav, Advocate For the Respondent/s : Mr. Vikash Kumar, Sc 11 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE PARTHA SARTHY ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 10-01-2023

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

"1. That this is an application for issuance of a writ in the "MANDAMAS" or other appropriate writ/writs, Direction /Directions, order /orders for commanding the Respondents to quashing Procese No. 6961 dated 25-10- 2021 as well as Procese No. 4312 dated 10-01-2021 issued by Respondent no. 8. The Respondent no. 8 has Patna High Court CWJC No.18111 of 2022 dt.10-01-2023

pleased to order to the petitioner to paid Total Rs. 1,08,881.86 (one lakh eight thousand eight hundred eighty one rupees and eighty six paise) Tax-Rs. 41,543.00, Penalty Rs. 20,000/- Interest Rs. 7,338.86 for period of 2020-2021 as well as to paid Total Rs. 70331.60 (seventy thousand three hundred thirty one rupees and sixty paise). Tax-Rs. 44640.00, Penalty 20,000/- Interest Rs. 70231.60. It is further pray that the petitioner has not received any GST from Surav Siksha Abhiyan under District Siwan i. e from Respondent no. 10. The petitioner has not entitled to paid GST to aforesaid amount to Respondent no. 8. It is further pray that the operation of Procese No. 6961 dated 25-10-2021 as well as Procese No. 4312 dated 10- 01-2021 issued by Respondent no. 8 may be stay during the pendency of this writ petition.

This petition has been filed for quashing of the orders

dated 25.10.2021 and 10.01.2021 passed by the respondent no. 8

namely The Assistant Commissioner of State Taxes, Circle Siwan,

Patna in GSTIN-10ABIPY1272F1ZU for the period 2020-21. The

order is 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. 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. Patna High Court CWJC No.18111 of 2022 dt.10-01-2023

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 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. 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 orders dated

25.10.2021 and 10.01.2021 passed by the respondent no. 8

namely The Assistant Commissioner of State Taxes, Circle

Siwan, Patna in GSTIN-10ABIPY1272F1ZU for the period

2020-21;

(b) The petitioner undertakes to deposit 20% of

the amount of the demand raised before the Assessing

Officer. This shall be done within eight weeks;

Patna High Court CWJC No.18111 of 2022 dt.10-01-2023

(c) 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 had already deposited

up to the extent of twenty percent, the same shall be set off

against the amount to be deposited. Also, if the deposit is

found to be in excess, the same shall be refunded within

two months from the date of passing of the order;

(d) 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;

(e) Petitioner undertakes to appear before the

Assessing Authority on 25.01.2023 at 10:30 A.M., if possible

through digital mode;

(f) The Assessing Authority shall decide the case on

merits after complying with the principles of natural justice;

(g) 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;

Patna High Court CWJC No.18111 of 2022 dt.10-01-2023

(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 assessment, 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 before this Court, 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;

Patna High Court CWJC No.18111 of 2022 dt.10-01-2023

(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

reasonable dispatch;

(q) We have not expressed any opinion on merits

and all issues are left open;

(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) Prakash/-

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