M/S Shree Pawan Putra Agencies v. The State Of Bihar And ORS

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.928 of 2009 ====================================================== M/S SHREE PAWAN PUTRA AGENCIES, a proprietorship firm having its place of business at N.H.31, Near Taxi Stand, P.S. Khajanchi Hat, DistrictPurnea through its proprietor Bimlesh Kumar Das, son of Sri Narayan Lal Das.

... ... Petitioner/s

Versus

1. The State of Bihar through its Special Secretary, Department of law, Government of Bihar.

2. The Commissioner of Commercial Taxes cum Principal Secretary to Government, Finance (Commercial Taxes) Department, New Secretariat, Vikas Bhawan, Bailey Road, Patna.

3. The Commercial Taxes Officer, Purnea Circle, Purnea. ... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s :

Mr.Ramesh Kumar Agrawal, Advocate For the Respondent/s :

Mr.Vikash Kumar, SC 11 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) Date : 31-08-2020 Petitioner has prayed for the following relief/s: "(i) To declare the Bihar Tax on Entry of goods into local areas for consumption, use or sale therein (Amendment and Validation) Act, 2008 (Act No.13 of 2008) dated 15.04.2008 (hereinafter referred to as 'the Amendment and Validation Act, 2008 only) (Annexure-9), as ultra vires Articles 14, 19(1) (g), 246, 301 and 304 of the Constitution of India.

(ii) To declare the Bihar Tax on Entry of goods into local areas for consumption, use or sale therein (Amendment and Validation) Act, 2007 (Act No.12 of 2007) dated 19.04.2007

2/4 (hereinafter referred to as 'the Amendment and Validation Act, 2007 only) (Annexure-8), as ultra vires Articles 14, 19(1)(g), 246, 301 and 304 of the Constitution of India.

(iii) To issue a writ of certiorari for quashing exparty best judgment assessment and penalty order dated 22.10.2008 (Annexure-10) passed by the respondent Commercial Taxes Officer by which Rs.11,92,400.24 has been imposed as entry tax and also Rs.35,77,200.72 as penalty under Section 32(1)(c) of the Bihar Value Added Tax Act, 2005 and also for quashing the notice of demand bearing No.9537 dated 22.10.2008 (Annexure-11) issued by Total Rs.47,69,601/- (iv) For issuance of an appropriate writ(s), order(s) or direction(s) to the respondents for restraining them from making any demand of entry tax and penalty from the petitioner firm.

(v) To any other relief or reliefs for which the petitioner is found entitled to in the facts and circumstances of the case."

It is not in dispute that the question of law with regard to validity of the statutes now stands settled by Hon'ble the Apex Court in Jindal Stainless Ltd. & Anr. Vrs. State of Haryana & Ors., (2017) 12 SCC 1.

Thus, the only surviving issue is as to whether the impugned order dated 22nd of October, 2008 passed by the Commercial Tax Officer (Annexure-10) determining the liability of tax; interest; as also penalty can be said to be perverse or not. Also, the consequential notice of demand needs to be quashed

3/4 or not.

It is evident from perusal of the impugned order itself that no reason in determining the amounts of tax/interest of penalty has been assigned. Also, no opportunity of hearing was afforded.

Undisputedly, the order, cryptic in nature, entails civil consequences, as such, we quash and set aside the same and remand the matter back to the authority for consideration afresh.

The liability being an old one, pertaining to the year 2006-07, we dispose of the present petition giving following directions:

(a) Impugned order dated 22nd of October, 2008 passed by the Commercial Tax Officer (Annexure-10) is quashed and set aside and consequential notice of demand bearing No. 9537 dated 22.10.2008 (Annexure-11) also stands quashed; (b) The matter is remanded back to the authority concerned for reconsideration afresh. (c) The authorized representative of the petitioner shall remain present in the office of the Assessing Officer at 10:30 A.M. on 5th of October, 2020. However, if on account of the prevalent attending circumstances, physical presence is not possible, such attendance can be through digital mode for which a link shall be sent.

4/4 (d) Learned counsel for the petitioner shall supply the particulars of the e-mail I.D. as also the mobile number on which such link is required to be sent. This, he shall do before 5th October, 2020. (e) Learned counsel for the State undertakes to ensure compliance of the order.

(f) Petitioner undertakes to fully cooperate and not take any unnecessary adjournment.

(g) The proceedings be expedited and in any event shall be completed within a period of two months from the date of first appearance.

(h) All issues on merit are left open.

Petition is disposed off in the aforesaid terms. (Sanjay Karol, CJ) ( S. Kumar, J) pallavi/- AFR/NAFR CAV DATE Uploading Date 16.09.2020 Transmission Date