Bablu Kumar v. The State Of Bihar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.9382 of 2021 ====================================================== Bablu Kumar, son of Shree Tulsi Paswan, Having his office at Road no. 13B, Rajendra Nagar, P.S.- Kadamkuan, District- Patna. ... ... Petitioner/s
Versus
1.
The State of Bihar through the Joint Commissioner of State Tax, Kadamkuan Circle, Patna.
2.
Joint Commissioner of State Tax, Kadamkuan Circle, Patna 3.
Assistant Commissioner of State Tax, Kadamkuan Circle, Patna 4.
State Bank of India B.S.E.B. Branch, Frazer Road, Patna through its Branch Manager.
5.
The Branch Manager, B.S.E.B. Branch, Frazer Road, Patna. ... ... Respondent/s ====================================================== Appearance :
For the Petitioner/s :
Mr. Alok Kumar @ Alok Kr. Shahi, Advocate Mr. Arvind Kumar, Advocate For the Respondent/s :
Mr. Vikash Kumar, SC 11.
Mr. Apurv Harsh, Advocate (SBI) ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR 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 : 07-07-2021 Petitioner has prayed for the following relief(s): "(i) Issuance of writ of certiorari for quashing the notice dated 04.03.2020 (Annexure-2) for the financial year 2018-2019 by which the petitioner has been advised to pay Rs. 4,99,176/- as tax, interest and penalty.
2/6 (ii) Issuance of writ in the nature of certiorari for quashing of notice dated 11.01.2021 (Annexure3) issued under Section 79 of the Act to the State Bank of India for attaching the account of the petitioner for payment of Rs. 4,83,164.
(iii) For any other consequential relief/reliefs for which the petitioner is entitle by this Hon'ble Court in the facts and circumstances of the present case."
The instant petition has been filed for quashing of notice in dated 04.03.2020 for the financial year 2018-2019 issued by Respondent No. 3 namely the Assistant Commissioner of State Tax, Kadamkuan Circle, Patna vide reference No. ZA100320004466E as also the notice under Section 79(1)(c) in Form GST DRC-13 dated 11th January, 2021.
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
3/6 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. 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 notice in dated 04.03.2020 for the fincial year 2018-2019 issued by Respondent No. 3 namely the Assistant Commissioner of State Tax, Kadamkuan Circle, Patna vide reference No. ZA100320004466E as also the notice under Section 79(1)(c) in Form GST DRC-13 dated 11th January, 2021;
(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;
4/6 (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 18th of August, 2021 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
5/6 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) Liberty reserved to the petitioner to challenge the order, if required and desired;
(n) Equally, liberty reserved to the parties to take recourse to such other remedies as are otherwise available in accordance with law;
(o) 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;
(p) We have not expressed any opinion on merits and all issues are left open;
(q) If possible, proceedings during the time of
6/6 current Pandemic [Covid-19] 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) ( S. Kumar, J) Sujit/PKP AFR/NAFR CAV DATE Uploading Date 16.07.2021 Transmission Date