M/S Dharamraj Motors vs The Union Of India
2023 Latest Caselaw 372 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                  Civil Writ Jurisdiction Case No.17851 of 2022
     ======================================================

M/s Dharamraj Motors Salkhua Bazar, Saharsa through its Proprietor Priyanka Kumari, Female, Aged about 36 Years, W/o Uma Kant Kumar, R/o- Ward No. -11 Kopariya, Saharsa, Bihar.

... ... Petitioner/s Versus

1. The Union of India through the Secretary Department of Revenue, Ministry of Finance, North Block, New Delhi.

2. The Secretary Department of Revenue, Ministry of Finance, North Block, New Delhi.

3. The State of Bihar through the Commissioner cum Secretary, Commercial Tax Department, Govt. of Bihar, Patna.

4. The Commissioner cum Secretary, Commercial Tax Department, Govt. of Bihar, Patna.

5. The Additional Commissioner State Tax (Appeals), Purnia Division, Purnia, Bihar.

6. The Joint Commissioner of State Tax, Saharsa, Circle, Saharsa, Bihar.

7. The Assistant Commissioner of State Tax, Saharsa Circle, Saharsa, Bihar.

8. The District Certificate Officer, Saharsa, Bihar.

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

For the Petitioner/s : Mr. Gyan Shankar, Advocate For the Respondent/s : Dr. K.N. Singh, ASG Mr. Vivek Prasad, GP-7 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE PARTHA SARTHY ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 25-01-2023

Heard learned counsel for the parties.

Petitioner has prayed for the following relief(s):- Patna High Court CWJC No.17851 of 2022 dt.25-01-2023

"

Patna High Court CWJC No.17851 of 2022 dt.25-01-2023

Patna High Court CWJC No.17851 of 2022 dt.25-01-2023

Patna High Court CWJC No.17851 of 2022 dt.25-01-2023

Patna High Court CWJC No.17851 of 2022 dt.25-01-2023

"

It is brought to our notice that vide impugned order

dated 16.11.2022, passed by the Respondent No. 5,

namely the Additional Commissioner State Tax (Appeals),

Purnia Division, Purnia, Bihar in Appeal No. (ARN)

AD1011220018116 (Annexure-4), the appeal of the

petitioner against the order dated 08.02.2021, passed by

the Respondent No. 7, namely the Assistant Commissioner

of State Tax, Saharsa Circle, Saharsa, Bihar (Annexure-2),

and Summary of the order in Form GST DRC-07 dated

08.02.2021 in Reference No. ZD1002210067462

(Annexure-3) has been rejected merely on the ground of

being barred by limitation. Both the orders were ex parte

in nature. Petitioner has also prayed for quashing of the Patna High Court CWJC No.17851 of 2022 dt.25-01-2023

notice dated 03.11.2022 (Annexure-5).

In our considered view, the delay stands

sufficiently explained on account of COVID-19

restrictions.

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

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 Patna High Court CWJC No.17851 of 2022 dt.25-01-2023

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 order dated

16.11.2022, passed by the Respondent No. 5, namely the

Additional Commissioner State Tax (Appeals), Purnia

Division, Purnia, Bihar in Appeal No. (ARN)

AD1011220018116 (Annexure-4); order dated 08.02.2021,

passed by the Respondent No. 7, namely the Assistant

Commissioner of State Tax, Saharsa Circle, Saharsa, Bihar

(Annexure-2); Summary of the order in Form GST DRC-07

dated 08.02.2021 in Reference No. ZD1002210067462

(Annexure-3) and the notice dated 03.11.2022 (Annexure-5);

(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; Patna High Court CWJC No.17851 of 2022 dt.25-01-2023

(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 15th of February, 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. Also, opportunity to place on record all essential

documents and materials, if so required and desired, shall Patna High Court CWJC No.17851 of 2022 dt.25-01-2023

be granted;

(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

in accordance with law;

(p) We are hopeful that as and when petitioner takes

recourse to such remedies, before the appropriate forum, Patna High Court CWJC No.17851 of 2022 dt.25-01-2023

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

digital mode;

The instant petition stands disposed of in the

aforesaid terms.

Interlocutory Application(s), if any, shall stand

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) Amrendra/PKP AFR/NAFR CAV DATE Uploading Date 25.01.2023 Transmission Date