Patna High Court

M/S Himanshu Traders (A Sole ... vs The Union Of India on 20 January, 2023

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                     Civil Writ Jurisdiction Case No.642 of 2023
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M/S Himanshu Traders (A Sole Proprietor Ship Firm), having its Registered Office at- Purani Bazar, Thana Road, Mairwa, P.S.- Mairwa, District- Siwan. through its Sole Proprietor Mrs.Gudan Kumari @ Guddan Kumari aged about 37 years (F).

... ... 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, Siwan Circle, Siwan.

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

4. Additional Commissioner of State Tax (Appeal), Saran Division, Chapra.

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

For the Petitioner/s : Mr.Anurag Saurav, Advocate For the Respondent/s : Dr. K.N. Singh (ASG) Mr. Anshuman Singh, Sr. SC, CGST & CX Mr.Vivek Prasad ( GP-7 ) ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE PARTHA SARTHY ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

(The proceedings of the Court are being conducted by Hon'ble the Chief Justice/ Hon'ble Judges through Video Conferencing from their residential offices/residences. Also, the Advocates and the Staffs joined the proceedings through Video Conferencing from their residences/offices.)

Date : 20-01-2023

Heard learned counsel for the parties.

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

(i) For issuance of appropriate writ/order/direction for setting aside order bearing Order dated 05.09.2022 passed by Additional Commissioner (Appeal), Saran Division, Chapra in Appeal Case No. SN/GST-

15/2022-23 for the financial year 2018-19 whereby Patna High Court CWJC No.642 of 2023 dt.20-01-2023

and whereunder the Appellate Authority rejected the appeal filed by the petitioner against the order dated 08.03.2020 passed by Respondent no. 3 on the ground of limitation after finding a delay of two month and further directed to issue GST APL-02.

(ii) For issuance of appropriate writ/order/direction for setting aside order bearing reference no. ZA1003200117141 dated 08.03.2020 passed by Assistant Commissioner of State Tax jurisdiction, Siwan Circle, Siwan, whereby and where under respondent rejected the Inpur Tax Credit Claim by the petitioner in Form GSTR3B for the financial year 2018-19 and an amount of Rs. 6,41,119/- was imposed as tax interest and penalty on the petitioner under Section 73(9) of BGST Act.

(iii) For setting aside order dated 07.03.2020 passed by Assistant Commissioner of State Tax Jurisdiction, Siwan Circle, Siwan, has rejected the input tax credit of the petitioner and imposed the tax including tax and penalty amounting of Rs. 6,41,119/- on the petitioner under section 73(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 appropriate writ/order/direction in the nature of mandamus directing the respondent authorities to release the Bank Account of the petitioner.

(VI) For issuance of an appropriate Writ(s), order(s), and/or direction(s), as Your Lordships may deem fit and proper in the facts and circumstances of this case in the interest of justice.

Patna High Court CWJC No.642 of 2023 dt.20-01-2023

It is brought to our notice that vide impugned order dated

05.09.2022 passed by the Respondent No. 4 namely the Additional

Commissioner of State Tax (Appeal), Saran Division, Chapra, in

Appeal Case No.SN/GST-15/2022-23, the appeal of the petitioner

against the order dated 08.03.2020 passed by Respondent No. 3,

namely The Assistant Commissioner of State Tax, Siwan Circle,

Siwan, under Section 73(9) of BGST Act, 2017; and summary of

order dated 07.03.2020 in Form GST DRC-07 for the financial

year 2018-2019, has been rejected on the ground of the same being

barred by 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 Patna High Court CWJC No.642 of 2023 dt.20-01-2023

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.

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

05.09.2022 passed by the Respondent No. 4 namely the

Additional Commissioner of State Tax (Appeal), Saran

Division, Chapra, in Appeal Case No.SN/GST-15/2022-23,

and the order dated 08.03.2020 passed by Respondent No. 3,

namely The Assistant Commissioner of State Tax, Siwan

Circle, Siwan, under Section 73(9) of BGST Act, 2017; and

summary of order dated 07.03.2020 in Form GST DRC-07;

(b) We accept the statement of the petitioner that ten Patna High Court CWJC No.642 of 2023 dt.20-01-2023

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

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 06.02.2023 at 10:30 A.M., if possible through

digital mode;

(g) The Assessing Authority shall decide the case on Patna High Court CWJC No.642 of 2023 dt.20-01-2023

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.642 of 2023 dt.20-01-2023

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;