M/S Oasis Creative Construction Pvt. Ltd. v. The Union Of India

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.11232 of 2022 ====================================================== M/s Oasis Creative Construction Pvt. Ltd. 203, Baidyanath Place, Jagdeo Path, Bailey Road, Patna - 800014 through its Managing Director Sri Manoj Kumar Mehta, Aged about 45 Years, Gender Male, Son of Shiv Narayan Mehta, Resident of Village Kamalpur, P.S.- Kunauli, District Supaul. ... ... Petitioner/s

Versus

1.

The Union of India through the Secretary, Ministry of Finance, Government of India, New Delhi.

2.

The State of Bihar through the Commissioner, Department of State Taxes, Government of Bihar, Patna.

3.

The Additional Commissioner of State Taxes (Appeals), Patna West Division, Patna.

4.

The Assistant Commissioner of State Taxes, Danapur Circle, Danapur, District Patna.

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

For the Petitioner/s :

Mr.Alok Kumar, Advocate For the Respondent/s :

Dr. K.N. Singh, ASG Mr. Anshuman Singh, Sr. SC., CGST & CX For the State :

Mr. Vikash Kumar, SC-11 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) Date : 10-08-2022 Heard learned counsel for the parties.

Petitioner has prayed for the following relief(s):- " (i) For issuance of consequential writ or order for quashing of order dated 14.03.2022 issued vide Memo No. 4492 dated 14.03.2022 passed by the Additional Commissioner, State Tax (Appeals), Patna West Division, Patna whereby the Tax, Interest and Penalty imposed by the Assessing Officer has been confirmed;

2/8 (ii) For further issuance of consequential writ or order for quashing of unseasoned orders passed by the Assistant Commissioner, State Tax, Danapur Circle, District Patna imposed Tax, Interest and Penalty utilizing the power under Section 74(9) of the CGST/BGST Act, 2017 and the Demand Notice in Form GST DRC-07 dated 07 03 2020 has been issued;

(iii) For further issuance of a direction or order restraining the respondents from taking coercive action for recovery of the amount in demand from the petitioner during the pendency of the present writ petition or for a direction to refund of the part or whole of the amount in case recovered from the Petitioner;

(iv) For grant of any relief or reliefs to which the petitioner is entitled in the facts and circumstances of the case."

Petitioner has prayed for quashing of the impugned orders passed by the Assistant Commissioner, State Tax, Danapur Circle, District Patna under Section 74(9) of the CGST/BGST Act, 2017 (Annexure-1 series); Summary of the orders in Form GST DRC-07 dated 07.03.2020 in Reference Nos. ZA10032001D950J, ZA100320010931J, ZA100320010962E, ZA1003200109690, ZA1003200109781, ZA100320010991D respectively (Annexure-2 series) and orders dated 14.03.2022, issued vide Memo No. 4492 passed by the Additional

3/8 Commissioner, State Tax (Appeals), Patna West Division, Patna in Appeal Case Nos. G.S.T./D.N.- 01/2020-21, G.S.T./D.N.- 02/2020-21, G.S.T./D.N.- 03/2020-21, G.S.T./D.N.- 04/2020-21, G.S.T./D.N.- 05/2020-21 and G.S.T./D.N.- 06/2020-21 respectively (Annexure-3). 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

4/8 order, ex parte in nature, passed in violation of the principles 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 orders passed by the Assistant Commissioner, State Tax, Danapur Circle, District Patna under Section 74(9) of the CGST/BGST Act, 2017 (Annexure-1 series); Summary of the orders in Form GST DRC-07 dated 07.03.2020 in Reference Nos. ZA10032001D950J, ZA100320010931J, ZA100320010962E, ZA1003200109690, ZA1003200109781, ZA100320010991D respectively (Annexure-2 series) and orders dated 14.03.2022, issued vide Memo No. 4492 passed by the Additional Commissioner, State Tax (Appeals), Patna West Division, Patna in Appeal Case Nos. G.S.T./D.N.- 01/2020-21, G.S.T./D.N.- 02/2020-21, G.S.T./D.N.- 03/2020-21, G.S.T./D.N.- 04/2020-21, G.S.T./D.N.- 05/2020-21 and

5/8 G.S.T./D.N.- 06/2020-21 respectively (Annexure-3); (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 bank account(s) of the writ-petitioner, if attached in reference to the proceedings, subject matter of present petition. This shall be done immediately;

6/8 (f) Petitioner undertakes to appear before the Assessing Authority on 12th of September, 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; (m) The Assessing Authority shall pass a speaking

7/8 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 stands disposed of in the aforesaid terms.

Interlocutory Application(s), if any, stands disposed of.

Learned counsel for the respondents undertakes

8/8 to communicate the order to the appropriate authority through electronic mode.

(Sanjay Karol, CJ) ( S. Kumar, J) veena/rajivAFR/NAFR CAV DATE Uploading Date Transmission Date