M/S Classic Marble And Granites v. The State Of Bihar Through The Principal Secretary Cum Commissioner,

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.18144 of 2021 ====================================================== M/s Classic Marble and Granites a proprietorship firm having its place of business at Jaganpura, R.K. Nagar, Patna - 800027 through its proprietor namely Hassan Raza male aged about 39 years son of Moohammad Hasan Resident of Village - Chaknasir, P.O. Sukki, P.S. Patepur, District- Vaishali - 843114.

... ... 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, (Appeal), Patna West Division, Patna.

3.

The Deputy Commissioner of State Taxes, Patna South Circle, Patna (2017 -18).

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

For the Petitioner/s :

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

Mr. Vivek Prasad, G.P.-7 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE A. M. BADAR ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) Date : 27-10-2021 Heard learned counsel for the parties.

Petitioner has prayed for the following relief(s):-

2/6 Having heard learned counsel for the parties, as also perused the record, we are of the considered view that the prayer made by the petitioner, with regard to applicability of the provisions of Section 50/74 of the Bihar Goods and Service Tax Act, 2017 (hereinafter referred to as "the Act") was never considered by the Appellate Authority, despite the issue having been raised by the petitioner. Also, the order passed by the Appellate Authority is cryptic and unreasonable. None of the issues raised by the petitioner in the appeal were considered or dealt with.

3/6 Shri Vivek Prasad, learned Government Pleader No. 7 does not dispute such position. However, he seeks time to file a counter affidavit in the matter.

We see no reason as to why time, as prayed for, is granted, when ex facie we are of the considered view that the Appellate Authority has failed to exercise the jurisdiction vested, to take a decision in accordance with law. The order is totally unsustainable in view of the law, more so in view of the provisions of sub-section

(12) of Section 107 of the Act. Further, the order does not assign any reason for arriving at the conclusion for modifying the order passed by the Assessing Authority. It is a settled principle of law that the impugned order entails civil consequences, inasmuch as, the petitioner is required to not only pay the amount but also suffer penal consequences.

As such, leaving all questions of fact and law open, to be adjudicated by the Appellate Authority, we disposed of the present petition in the following terms:- (a) We quash and set aside the impugned order dated 28.03.2021 passed by respondent no.2, namely the Additional Commissioner of State Taxes, (Appeal), Patna West Division, Patna in Appeal Case No. GST/PS-03/19-20, as also the summary of the demand in Form GST APL-04 dated 31.03.2021, passed by

4/6 respondent no.2, namely the Additional Commissioner of State Taxes, (Appeal), Patna West Division, Patna (Annexure-5/A); (b) The appeal is restored to its original file and number position and status;

(c) Petitioner undertakes to appear before the Appellate Authority i.e. respondent no.2, namely the Additional Commissioner of State Taxes, (Appeal), Patna West Division, Patna on 22nd of November, 2021, if possible through digital mode;

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

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

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

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

5/6 (i) The Appellate Authority shall positively decide the appeal afresh on merits expeditiously, preferably within a period of two months from the date of appearance of the petitioner;

(j) The Appellate Authority shall pass a speaking order assigning reasons, copy whereof shall be supplied to the parties;

(k) Liberty reserved to the petitioner to challenge the order, if required and desired;

(l) Equally, liberty reserved to the parties to take recourse to such other remedies as are otherwise available in accordance with law;

(m) 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;

(n) If possible, proceedings during the time of current Pandemic [Covid-19] be conducted through digital mode; (o) We have not expressed any opinion on merits and all issues are left open;

The instant petition sands disposed of in the aforesaid terms.

6/6 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) (A. M. Badar, J) P.K.P./Amrendra AFR/NAFR CAV DATE Uploading Date 03.11.2021 Transmission Date