M/S Super Mart (A Sole Proprietor Ship Firm) v. The Union Of India

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.14966 of 2022 ====================================================== M/s Super Mart (a Sole Proprietor ship Firm) having it registered office at 344, Banjariya Pandal, Banjarioya, East Champaran, Bihar through its sole proprietor Mohammad Ijhar Ansari.

... ... Petitioner/s

Versus

1.

The Union of India through the Secretary, Ministry of Finance, Department of Revenue, having its office at Room No. 46, North Block, P.O. and P.S. North Block, New Delhi-110001.

2.

The Commissioner of Central Goods and Service Tax and Central Excise, Patna having its office at New Secretariat Patna, Bihar. 3.

Joint Commissioner of State Tax, Motihari Circle, East Champaran, Bihar. 4.

Assistant Commissioner of State Tax, Motihari Circle, East Champaran, Bihar.

5.

Additional Commissioner of State Tax (Appeal), Tirhut Division, Muzaffarpur.

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

For the Petitioner/s :

Mr. Anurag Saurav, Advocate For the Respondent/s :

Mr. Anshuman Singh, Sr. SC, CGST & CX For the State :

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) For issuance of appropriate writ/order/direction for setting aside order dated 16.04.2022 passed by Additional Commissioner (Appeal), Tirhut Division, Muzaffarpur for rectification of Order dated 16.03.2022 in Appeal Case No. AD1002210056810 for the financial year 2019-20 whereby and whereunder the Appellate Authority not rectified the

2/8 previous order dated 16.03.2022 passed by the Appellate Authority.

(ii) For issuance of appropriate writ/order/direction for setting aside order dated 16.03.2022 passed by Additional Commissioner (Appeal), Tirhut Division, Muzaffarpur in Appeal Case No. AD1002210056810 for the financial year 2019-20 whereby and whereunder the Appellate Authority has upheld the order dated 02.02.2021 passed by respondent no. 5. (iii) For issuance of appropriate writ/order/direction for setting aside order bearing reference no. ZD100221001366D dated 02.02.2021 passed by Assistant Commissioner of State Tax jurisdiction, Motihar Circle, East Champaran, Bihar, whereby and whereunder respondent rejected the Input Tax Credit Claim by the petitioner in Form GSTR3B for the financial year 2019-20, as the same were not reflecting in GSTR2A and an amount of Rs.

17,27,744/- was imposed as tax interest and penalty on the petitioner under section 70 (9) of BGST Act. (iv) For setting aside order dated 01.02.2021 passed by Joint Commissioner of State Tax Jurisdiction, Motihari Circle has rejected the input tax credit of the petitioner and imposed the tax including tax and penalty amounting of Rs. 17,27,744/- on the petitioner under section 73(9) of BGST Act and a direction was issued to raised demand in the Form of GST DRC 07.

(v) For setting aside the demand notice issued in the Form of DRC07.

(vi) For releasing all of the Bank Account of the Petitioner which has been attached by the respondent

3/8 authorities.

(vii) For issuance of appropriate Writ(s)/order(S), and/or direction(s), as Your Lordships may deem fit and proper in the facts and circumstances of this case in the interest of justice."

It is brought to our notice that vide impugned order dated 16.04.2022 (Annexure-8) for rectification of order dated 16.03.2022 (Annexure-7) passed by the Respondent No. 4, namely, Additional Commissioner (Appeal), Tirhut Division, Muzaffarpur in Appeal Case No. AD1002210056810, the appeal of the petitioner against the order dated 02.02.2021 passed by the Respondent No. 4, namely, Assistant Commissioner of State Taxes, Motihari Circle, East Champaran, Bihar, has been rejected affirming the order of the Assessing Authority, and order dated 01.02.2021 passed by the Joint Commissioner of State Tax, Motihari Circle, East Champaran, Bihar. 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 and the limitation shall not be allowed to come in the way. Also, the case shall be decided on merits. Also, during pendency of the case, no coercive steps shall be taken against the petitioner.

4/8 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.

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 orders dated 16.04.2022 (Annexure-8); dated 16.03.2022 (Annexure-7) passed by the Respondent No. 5, namely, Additional

5/8 Commissioner (Appeal), Tirhut Division, Muzaffarpur in Appeal Case No. AD1002210056810; order dated 02.02.2021 passed by the Respondent No. 4, namely, Assistant Commissioner of State Taxes, Motihari Circle, East Champaran, Bihar, and order dated 01.02.2021 passed by the Respondent No. 3, namely the Joint Commissioner of State Tax, Motihari Circle, East Champaran, Bihar.

(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 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) Since, the petitioner has been pursuing the remedies before this Court, the issue of limitation shall not come in the of the Assessing Authority in deciding the matter on merits;

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

(l) Petitioner through learned counsel undertakes to

7/8 fully cooperate in such proceedings and not take unnecessary adjournment;

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

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

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

(q) 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;

(r) We have not expressed any opinion on merits and all issues are left open;

(s) If possible, proceedings be conducted through digital mode;

The instant petition sands disposed of in the

8/8 aforesaid terms.

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) ( Partha Sarthy, J) Sujit/Ashwini AFR/NAFR CAV DATE Uploading Date 14.11.2022 Transmission Date