Pankaj Kumar v. The State Of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.16008 of 2021 ====================================================== Pankaj Kumar, Son of Sunil Kumar Chaudhary, Resident of P.O. Ghorghut Mal, P.S. Sultanganj, District- Bhagalpur through its authorized representative namely Shri Vikas Saraf, male, aged about 41 years, Son of Late Bijay Agrawal, Resident of Bekapur, Shivaji Chowk, Munger- 811201 ... ... Petitioner/s

Versus

1.

The State of Bihar through the Principal Secretary cum Commissioner, Department of State Taxes, Government of Bihar, Patna. 2.

The Assistant Commissioner of State Taxes, Bhagalpur Circle, Bhagalpur, (August- 2019).

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

For the Petitioner/s :

Mr.Gautam Kumar Kejriwal, Advocate For the Respondent/s :

Mr.Vivek Prasad, P-7 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) Date : 16-09-2021 The petitioner has prayed for the following relief/s :-

2/7

3/7 The instant petition has been filed for quashing of the order dated 21.10.2019 passed by the Respondent No. 2 namely Assistant Commissioner of State Taxes, Bhagalpur Circle, Bhagalpur, in GSTIN-10BNHPK6415J1Z7 and Summary of Order dated 23.10.2019 in Reference No. ZA101019003846X. Both the orders were ex parte in nature.

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

4/7 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 21.10.2019 passed by the Respondent No. 2 namely Assistant Commissioner of State Taxes, Bhagalpur Circle, Bhagalpur, in GSTIN-10BNHPK6415J1Z7 and Summary of Order dated 23.10.2019 in Reference No. ZA101019003846X;

(b) The petitioner undertakes to deposit ten per cent of the amount of the demand raised before the Assessing Officer. This shall be done within four weeks. (c) 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,

5/7 the same shall be refunded within two months from the date of passing of the order;

(d) 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.

(e) Petitioner undertakes to appear before the Assessing Authority on 28th of October, 2021 at 10:30 A.M., if possible through digital mode;

(f) The Assessing Authority shall decide the case on merits after complying with the principles of natural justice; (g) Opportunity of hearing shall be afforded to the parties to place on record all essential documents and materials, if so required and desired;

(h) During pendency of the case, no coercive steps shall be taken against the petitioner.

(i) The Assessing Authority shall pass a fresh order only after affording adequate opportunity to all concerned, including the writ petitioner;

(j) Petitioner through learned counsel undertakes to fully cooperate in such proceedings and not take unnecessary adjournment;

6/7 (k) 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; (l) The Assessing Authority shall pass a speaking order assigning reasons, copy whereof shall be supplied to the parties;

(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 current Pandemic [Covid-19] be conducted through digital mode;

The instant petition sands disposed of in the aforesaid terms.

7/7 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 17.09.2021 Transmission Date