Dharmendra Kumar v. The Union Of India

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.9502 of 2021 ====================================================== Dharmendra Kumar, Son of Banarsi Yadav, Resident of Village- Barhoga, Yadu Ramu Ray Ke Tola Goreakothi, P.O.- Goreakothi, PS- Jamo Bazar, District- Siwan, Bihar- 841434.

... ... Petitioner/s

Versus

1.

The Union of India through Finance Secretary, Govt. of India, North Block, New Delhi- 110001.

2.

The State of Bihar through Finance Principal Secretary, Patna, Bihar. 3.

The Additional Commissioner State Tax (Appeal), Saran. 4.

The Joint Commissioner of State Tax, Siwan.

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

For the Petitioner/s :

Mr. Raju Prasad, Advocate For the Respondent/s :

Mr. (Dr.) K. N. Singh, ASG Mr. Anshuman Singh, Sr. SC, CGST &CX Mr. Ravindra Kumar Sharma, Advocate ====================================================== 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 : 22-07-2021 Petitioner has prayed for the following relief(s): "That this is an application for issuance of appropriate writ, order or direction to quash/setting aside the order dated 05.03.2020 (Annexure2) issued under reference No. ZA1003200054320 passed by the respondent no.4 whereby and where under direction has been given to petitioner to make a payment of rupees 310494.96 by

2/6 07.03.2020 u/s 74 of G.S.T. Act and to attached the bank account of the petitioner and also to quash the order dated 02.03.2021 (Annexure-4) whereby and whereunder the appeal filed by the petitioner has been rejected by the Appellate authority as the order suffering from multiple statutory violations on the basis of which harsh order has been passed against petitioner without considering the facts."

It is brought to our notice that vide impugned order dated 02.03.2021 passed by the Respondent No. 3 namely the Additional Commissioner, State Taxes (Appeal), Saran in Form GST APL -02 (Reference No. ZD100321000285E), the appeal of the petitioner against the order dated 05.03.2020 passed by the Respondent No. 4 namely the Joint Commissioner of State Tax, Siwan in GSTIN10CEPPK2787H1ZB has been rejected merely on the grounds of being barred by limitation. Both the orders were ex parte in nature. In our considered view, the delay stands sufficiently explained on account of COVID 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.

3/6 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, 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 order dated 02.03.2021 passed by the Respondent No. 3 namely the Additional Commissioner, State Taxes (Appeal), Saran in Form GST APL -02 (Reference No. ZD100321000285E), and the order dated 05.03.2020 passed by the Respondent No. 4 namely the Joint Commissioner of State Tax, Siwan in GSTIN10CEPPK2787H1ZB; (b) We accept the statement of the petitioner that ten per

4/6 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 3rd September, 2021 at 10:30 A.M., if possible through digital mode;

(g) The Assessing Authority shall decide the case on

5/6 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 in

6/6 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 during the time of 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) Ashwini/Sujit/- AFR/NAFR CAV DATE Uploading Date Transmission Date