Ashok And Sons Huf Proprietor Verma Industries Having Its Office v. State Of Bihar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.14192 of 2022 ====================================================== Ashok and Sons HUF Proprietor Verma Industries Having its Office at 70P, Barauni Industrial Area, Tilrath, Begusarai, through its Proprietor Ashok Kumar Tulsyan (Male, aged About 66 Years) Son of Sri Sitaram Tulsyan Residing at Purna Das Road, Sarat Bose, Koilkata, West Bangal-700029. ... ... Petitioner/s
Versus
1.
State of Bihar through Commissioner of State Tax, Bihar, Patna Having its Office at Vikas Bhawan, Patna.
2.
Addl. Commissioner of State Tax (Appeal). Darbhanga Division, Darbhanga.
3.
Asst. Commissioner of State Tax, Begusarai, Darbhanga, Bihar. ... ... 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 PARTHA SARTHY ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) Date : 10-11-2022 Petitioner has prayed for the following relief(s): "i) the order dated 25.08.2022 (as contained in Annexure-4) passed by the respondent no. 2 under Section 107 of the Bihar Goods and Service Tax Act, 2017 in Appeal Case No. AD 100722002075W for the Financial Year 2021-21 be quashed.
ii) the order dated 20.03.2021(as contained in Annexure-3 series) passed by the respondent no. 3 under Section 73 of the Bihar
2/7 Goods and Service Tax Act, 2017 for the Financial Year 2020-21 be quashed.
iii) the show cause notice dated 16.01.2021 (as contained in Annexure-1 series) issued by the respondent no. 2 under Section 73 of the Bihar Goods and Service Tax Act, 2017 for the Financial Year 2020-21 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 25.08.2022 passed by the Respondent No. 2 namely the Additional Commissioner of State Tax (Appeal), Darbhanga Division, Darbhanga, in Appeal Case No.AD100722002075W (Annexure-4), the appeal of the petitioner against the order dated 20.03.2021 passed by Respondent No. 3, namely The Assistant Commissioner of State Tax, Begusarai, Darbhanga, Bihar, under Section 73 of BGST Act, 2017; and show cause notice dated 16.01.2021 for the financial year 2020-21 has been rejected on the ground of the same being barred by limitation. 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
3/7 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 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.
4/7 25.08.2022 passed by the Respondent No. 2 namely the Additional Commissioner of State Tax (Appeal), Darbhanga Division, Darbhanga, in Appeal Case No.AD100722002075W (Annexure-4), the order dated 20.03.2021 passed by Respondent No. 3, namely The Assistant Commissioner of State Tax, Begusarai, Darbhanga, Bihar, under Section 73 of BGST Act, 2017; and show cause notice dated 16.01.2021;
(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
5/7 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.
(f) Petitioner undertakes to appear before the Assessing Authority on 30.11. 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
6/7 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 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;
The instant petition sands disposed of in the aforesaid terms.
Interlocutory Application(s), if any, also stands disposed of.
7/7 Learned counsel for the respondents undertakes to communicate the order to the appropriate authority through electronic mode.
(Sanjay Karol, CJ) ( Partha Sarthy, J) K.C.Jha/DKS AFR/NAFR CAV DATE Uploading Date 14.11.2022 Transmission Date