M/S Maa Kamakhya Construction vs The Union Of India
2023 Latest Caselaw 257 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.530 of 2023
     ======================================================

M/S Maa Kamakhya Construction through its Proprietor Biswajeet Kumar, male aged about 37 years, son of Sri Shankar Jha, having its registered office at- Gauripur Parsha, Badhara Khothi Purnea District- Purnea, resident of- In Front of Mahila Collage Purniya Dollar House Chok Purnea, District Purnea- 854301, Bihar.

... ... Petitioner/s Versus

1. The Union of India through the Secretary, Ministry of Finance (Department of Revenue), Government of India, New Delhi.

2. The Under Secretary, Ministry of Finance (Department of Revenue), Government of India, New Delhi.

3. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.

4. The Principal Secretary, Department of Finance, Government of Bihar, Patna.

5. The Joint Commissioner State Tax (J.C.S.T.) Purnea Circle Purnea- 854301.

6. The Assistant Commissioner State Tax, Purnea Circle, Purnea.

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

For the Petitioner/s : Mr.Uday Prasad Singh, Advocate For the Respondent/s : Dr. K.N. Singh (ASG) Mr. Anshuman Singh, Sr. SC, CGST & CX Mr. Vikash Kumar, SC-11 ====================================================== 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):- Patna High Court CWJC No.530 of 2023 dt.20-01-2023

A) For issuance of appropriate writ, rule or direction

nature of certiorari for quashing the order dated

19.10.2022 passed by the respondents authorities by

which the appeal filed vide Appeal No. ARN-

AD10092200806H by the petitioner for setting aside the

order of demand Letter /demand Notices dated

01.02.2021 vide reference o. ZD100221000701M which

was communicated though e mail on its GST PORTAL.

B) For issuance of direction to the respondents

authorities to consider the appeal filed by the petitioner

and set aside the order dated 01.02.2021 by which the

petitioner has been directed to pay the Letter/demand

Notices dated 01.02.2021 vide reference No.

ZD100221000701M, which by the petitioner has been

directed to pay Total CGST/SGST Tax amount of Rs.

1,34,29,565/- plus interest applicable as per under

section 73(1) for the period Financial Year 2019-20,

without providing adequate opportunity for hearing as

well as without accepting the Govt. portal document

which has been extract from its portal.

C) For grant of relief or reliefs as the petitioner is found

entitled.

It is brought to our notice that vide impugned order dated

19.10.2022 passed by the Additional Commissioner of State Taxes

(Appeals), Purnea Division, Purnea, in Appeal No.(ARN)

AD100922002806H, the appeal of the petitioner against the order Patna High Court CWJC No.530 of 2023 dt.20-01-2023

dated 01.02.2021 passed by Respondent No. 7, namely The

Assistant Commissioner of State Tax, Purnea Circle, Purnea, for

the period 01.04.2019 to 31.03.2020, 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

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, Patna High Court CWJC No.530 of 2023 dt.20-01-2023

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

19.10.2022 passed by the Additional Commissioner of State

Taxes (Appeals), Purnea Division, Purnea, in Appeal No.

(ARN) AD100922002806H, and the order dated 01.02.2021

passed by Respondent No. 7, namely The Assistant

Commissioner of State Tax, Purnea Circle, Purnea;

(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.

Patna High Court CWJC No.530 of 2023 dt.20-01-2023

(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

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, Patna High Court CWJC No.530 of 2023 dt.20-01-2023

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;

(r) If possible, proceedings be conducted through Patna High Court CWJC No.530 of 2023 dt.20-01-2023

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)

Rajiv/-K.C.Jha AFR/NAFR CAV DATE Uploading Date Transmission Date