Carlsberg India Private Ltd. v. State Of Bihar Through The Commissioner Of State Tax,

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.9140 of 2022 ====================================================== Carlsberg India Private Ltd. having its Office at Raghunathpur Bikram, P.O. Raghunathpur, P.S. Rani Talab District- Patna through its authorized signatory, Vikas Kumar Choudhary son of Sri Sadanand Choudhary, resident of Ward No. 11, Randaha, Post Balata, Vaishali- 844502, Bihar. ... ... Petitioner/s

Versus

1.

State of Bihar through the Commissioner of State Tax, Bihar, Patna having its office at Vikas Bhawan Bailey Road, Patna. 2.

Additional Commissioner of State Tax (Appeal), West Division, Patna. 3.

Dy. Commissioner of Commercial Taxes, Danapur Circle, Danapur, Patna. ... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s :

Mr.D.V.Pathy, 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 : 14-07-2022 Heard learned counsel for the parties.

Petitioner has prayed for the following relief(s):- i) the order dated 02.02.2022 (as contained in Annexure-4) in Appeal Case No.ST/DN-15/1819 for the period 2015-16 passed by the respondent no. 2 ex parte without hearing that too after and assurance of fixation of an another date of hearing is in contravention to the settled principles of natural justice and fair play in action be quashed.

ii) the order dated 18.02.2019 (as contained in

2/7 Annexure-3 series) passed by the respondent no. 3 without consideration of the revised return and also without supply of the relevant material or document relied upon to reach his conclusion to enable filing of a rebuttal thereto is in contravention to be set of principles of natural justice and fair play in action be quashed.

Iii) the notice of demand dated 18.02.2019 (as contained in Annexure-3 series) raised in pursuance of the order of assessment be quashed.

iv) for granting any other relief(s) to which the petitioner is otherwise found entitled to."

It is brought to our notice that vide impugned order dated 02.02.2022 passed by the Respondent No. 2, namely the Additional Commissioner of State Tax (Appeal), West Division, Patna, in Appeal Case No.ST/DN-15/18-19, the appeal of the petitioner against the order dated 18.02.2019 passed by Respondent No. 3, namely The Deputy Commissioner of Commercial Taxes, Danapur Circle, Danapur, Patna for the period 2015-16 has been rejected ex parte without consideration of written submissions and relevant documents.

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

3/7 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, 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

4/7 02.02.2022 passed by the Respondent No. 2, namely the Additional Commissioner of State Tax (Appeal), West Division, Patna, in Appeal Case No.ST/DN-15/18-19, and the order dated 18.02.2019 passed by Respondent No. 3, namely The Deputy Commissioner of Commercial Taxes, Danapur Circle, Danapur, Patna;

(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.

(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

5/7 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 16th of August, 2022 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, 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;

6/7 (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 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

7/7 communicate the order to the appropriate authority through electronic mode.

(Sanjay Karol, CJ) ( S. Kumar, J) K.C.Jha/- AFR/NAFR CAV DATE Uploading Date 21.07.2022 Transmission Date