Rahul Tradewing Pvt. Ltd. v. The State Of Bihar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.20111 of 2021 ====================================================== Rahul Tradewing Pvt. Ltd. a registered company having its registered office at EE0260166, near 0 mile, NH- 31, Gulabbagh, Purnea, Bihar- 854326 through its director namely Arun Kumar Agrawal male aged about 49 years son of Ram Awtar Agrawal resident of NH- 31, Near Marketing Yard, Lakhan Jhari, Purnea- 854326, Bihar ... ... 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), Purnea Division, Purnea.
3.
The Joint Commissioner of State Taxes, Purnea Circle, Purnea. (2019-2020) ... ... Respondent/s ====================================================== Appearance :
For the Petitioner/s :
Mr.Gautam Kumar Kejriwal, Advocate Mr. Atal Bihari Pandey, Advocate Mr. Alok Kumar Jha, Advocate Mr. Mukund Kumar, Advocate For the Respondent/s :
Mr.Vikash Kumar (SC11) Mr. Akash Chaturvedi, AC to SC-11 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) Date : 07-12-2021 Heard learned counsel for the parties.
Petitioner has prayed for the following relief(s). " a) For issuance of a writ in the nature of certiorari for quashing of the appellate order dated 06.08.2021 issued vide memo number 592 by the respondent no.2 whereby the appeal preferred by the petitioner against the order dated 12.02.2021 passed by the respondent no.3 under section 73 read with section 50 of the Bihar Goods and Services Tax Act, 2017 (hereinafter referred to as the Bihar act 2017
2/8 for short) has been rejected vide an order absolutely cryptic, nonspeaking and in teeth of section 107(12) of the Bihar Act 2017;
b) For further issuance of a writ in the nature of certiorari for quashing of the order dated 12.02.2021 passed by the respondent no.3 under section 73 read with section 50 of the Bihar act 2017 imposing liability of tax and interest against the petitioner for the financial year 2019-2020;
c) For further holding and a declaration that the effect and operation of section 16(2) (c) of the Bihar Act 2017 as against the petitioner would depend upon the simultaneous enquiry, scrutiny of the returns furnished by the corresponding supplier and action against him in terms of the provisions of the Bihar Act 2017 and Central Goods And Services Tax Act, 2017 (hereinafter referred to as the central act 2017 for short);
d) For further holding and a declaration that the action of the respondent No.3 in imposing liability of tax and interest against the petitioner for a transaction with respect to which the petitioner had already parted with the tax amount at the hands of the connected supplier without any action against such supplier of the petitioner is illegal, without jurisdiction and unsustainable in the eye of law;
e) For further holding and a declaration that the law under the Bihar act 2017 and central act 2017 requires the petitioner to pay the statutory tax to the supplier on point of purchase of goods or services and it is the bounden duty of such supplier to hand over the amount of tax collected from the petitioner to the government as the supplier stands as a trustee as against the government in so far as collection and payment of tax from the petitioner is concerned.
f) For further holding and a declaration that
3/8 the denial of input tax credit to the petitioner by the respondents on account of default committed by the supplier coupled with no action against the supplier to recover the tax already paid by the petitioner is in teeth of the principal of law held in the maxim "lex non cogit ad impossiblia" as it would be impossible for the petitioner to make the supplier hand over the amount of tax to the government;
g) For grant of any other relief or relief 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 6.8.2021 passed by the Respondent No. 2 namely Additional Commissioner of State Taxes (Appeal), Purnea Division, Purnea, in Appeal Case No. (ARN) AD100521000230E, the appeal of the petitioner against the order dated 10.02.2021 passed by the Respondent No. 3 namely the Joint Commissioner of State Taxes, Purnea Circle, Purnea, for the period 2019-2020 (Annexure-5) and Summary of Order in Form GST DRC-07 dated 12.02.2021 in Reference No. ZD100221008867U has been rejected. 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
4/8 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. 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 6.8.2021 passed by the Respondent No. 2 namely Additional Commissioner of State Taxes (Appeal), Purnea Division, Purnea, in Appeal Case No. (ARN) AD100521000230E (Annexure-7), order dated 10.02.2021
5/8 passed by the Respondent No. 3 namely the Joint Commissioner of State Taxes, Purnea Circle, Purnea, for the period 2019-2020 (Annexure-5) and Summary of Order in Form GST DRC-07 dated 12.02.2021 in Reference No. ZD100221008867U (Annexure-5/A);
(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
6/8 reference to the proceedings, subject matter of present petition. This shall be done immediately;
(f) Petitioner undertakes to appear before the Assessing Authority on 4th of January, 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 to communicate the order to the appropriate authority through
8/8 electronic mode.
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