Kalptaru Power Transmission Ltd. v. The State Of Bihar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.11580 of 2022 ====================================================== Kalptaru Power Transmission Ltd. having its place of business at 14, Shiv Sadan Lane, North S.K. Puri, Patna through its authorized representative Ketan Dhansukhlal Mehta aged about 58 years, son of Dhansukhlal resident of 302, Vajradeep Apartment, Opposite Deepanand Apartment, Mani Nagar, Ahmedabad City, Ahmedabad, Gujarat-380008.
... ... Petitioner/s
Versus
1.
The State of Bihar through the Principal Secretary cum Commissioner, Department of State Taxes, Government of Bihar, Patna. 2.
The Additional Commissioner of State Taxes (Appeals) Central Division, Patna.
3.
The Assistant Commissioner of State Taxes, Patliputra Circle, Patna (Financial Year - 2018 - 2019).
... ... Respondent/s ====================================================== Appearance :
For the Petitioner/s :
Mr.Gautam Kumar Kejriwal, Advocate Mr. Alok Kumar Jha, Advocate For the Respondent/s :
Mr.Vivek Prasad ( GP 7 ) ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) Date : 17-08-2022 Petitioner has prayed for the following relief(s): "a) For issuance of writ in the nature of certiorari for quashing of the order dated 09.05.2022 issued vide memo number 276[Patna by the respondent number 2 (hereinafter referred to as the appellate authority for short) whereby the appeal
2/8 preferred by the petitioner under section 107 of the Central Goods And Services Tax Act 2017 (hereinafter referred to as the central act 2017 for short) and Bihar Goods And Services Tax Act 2017 (hereinafter referred to as the Bihar act 2017 for short) has been rejected;
b) For issuance of writ or order in the nature of certiorari for quashing of the order dated 22.02.2021 and rectification of order dated 06.04.2021 passed by the respondent number 3 (hereinafter referred to as the assessing authority short) under section 73 and 161 of the central act 2017 and Bihar act 2017 and also for quashing of the summary of order issued in form GST DRC - 07 dated 22.02.2021 passed by the same respondent assessing authority.
c) For further restraining the respondents from taking any coercive action against the petitioner for recovery of the amount of tax and interest in terms of the impugned orders during the pendency of the present application;
d) For further holding and a declaration that mere absence of auto populated GSTR - 2A resulting in mismatch with the return filed by the petitioner in form GSTR - 3B cannot deprive the petitioner from the benefit of input tax credit;
e) For further holding and a declaration that the petitioner cannot be deprived of the benefit of input tax credit for
3/8 the defaults committed by the supplier/seller as the taxes paid by the petitioner to such supplier/seller constitutes due discharge of liability from the ends of the petitioner and also that such payment of tax to the supplier/seller is as good as payment of tax to the government insofar as the true purport and meaning of section 16 (2) (c) of the central act 2017 and Bihar act 2017 is concerned;
f) For grant of any other relief or reliefs to which the petitioner is found entitled in the facts and circumstances of this case." It is brought to our notice that vide impugned order dated 09.05.2022 passed by the Respondent No. 2 namely the Additional Commissioner of State Taxes (Appeals), Central Division, Patna, the appeal of the petitioner against the order dated 22.02.2021 passed by Respondent No. 3, namely The Assistant Commissioner of State Taxes, Patliputra Circle, Patna, under Section 73 and 161 of CGST/BGST Act, 2017; and summary of order dated 22.02.2021 in Form GST DRC-07 for the financial year 2018-19, has been rejected by an ex parte order. 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
4/8 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.
5/8 09.05.2022 passed by the Respondent No. 2 namely the Additional Commissioner of State Taxes (Appeals), Central Division, Patna, the order dated 22.02.2021 passed by Respondent No. 3, namely The Assistant Commissioner of State Taxes, Patliputra Circle, Patna, under Section 73 and 161 of CGST/BGST Act, 2017; and summary of order dated 22.02.2021 in Form GST DRC-07;
(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;
6/8 (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 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
7/8 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 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
8/8 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) K.C.Jha/DKS AFR/NAFR CAV DATE Uploading Date 18.08.2022 Transmission Date