M/S Hanif Ahmad v. The State Of Bihar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.17131 of 2022 ====================================================== M/s Hanif Ahmad through its Proprietor, Hanif Ahmad, S/o Abdul Jabbar, aged 52, year Male, resident of Murgitola, Rahmat Nagar, Phulwarisharif, P.S.-Phulwari, District- Patna, Pin - 801505. ... ... Petitioner/s
Versus
1.
The State of Bihar through the Commissioner of State Tax, Bihar, New Secretariat, Patna.
2.
The Commissioner of State Tax, Bihar, New Secretariat, Patna. 3.
The Assistant Commissioner of State Tax, Kadam Kuan Circle, Patna. ... ... Respondent/s ====================================================== Appearance :
For the Petitioner/s :
Mrs.Archana Sinha @ Archana Shahi, 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) (The proceedings of the Court are being conducted by Hon'ble the Chief Justice/ Hon'ble Judges through Video Conferencing from their residential offices/residences. Also, the Advocates and the Staffs joined the proceedings through Video Conferencing from their residences/offices.) Date : 16-12-2022 Petitioner has prayed for following relief(s) : - "a) For issuance of writ of Certiorari, quashing order dated 4.03.20 (Annexure-2) issued by Respondent no. 3 without giving any opportunity of hearing and violated the principles of natural justice.
b) For defreezing the Bank account no.
11667724876 maintained in the SBI, Vetenary
2/6 college complex, Patna.
c) For any other consequential relief or reliefs for which the petitioner is found entitled during course of hearing of this writ petition."
It is brought to our notice that vide impugned order dated 04.03.2020 passed by the Respondent No. 3, namely the Assistant Commissioner of State Tax, Kadamkuan Circle, Patna, the input tax credit claim of the petitioner has been rejected and tax amounting to Rs. 75,57,386.00, including interest and penalty, has been imposed, without providing any further notice to the petitioner.
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 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
3/6 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 04.03.2020 passed by the Respondent No. 3, namely the Assistant Commissioner of State Tax, Kadamkuan Circle, Patna;
(b) The petitioner undertakes to deposit twenty per cent of the amount of the demand raised before the Assessing Officer. This shall be done within four weeks. (c) 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;
(d) We also direct for de-freezing/de-attaching of the
4/6 bank account(s) of the writ-petitioner, if attached in reference to the proceedings, subject matter of present petition. This shall be done immediately.
(e) Petitioner undertakes to appear before the Assessing Authority on 04.01.2023 at 10:30 A.M., if possible through digital mode;
(f) The Assessing Authority shall decide the case on merits after complying with the principles of natural justice;
(g) Opportunity of hearing shall be afforded to the parties to place on record all essential documents and materials, if so required and desired;
(h) During pendency of the case, no coercive steps shall be taken against the petitioner.
(i) The Assessing Authority shall pass a fresh order only after affording adequate opportunity to all concerned, including the writ petitioner;
(j) Petitioner through learned counsel undertakes to fully cooperate in such proceedings and not take unnecessary adjournment;
(k) The Assessing Authority shall decide the case on merits expeditiously, preferably within a period of two
5/6 months from the date of appearance of the petitioner; (l) The Assessing Authority shall pass a speaking order, assigning reasons, copy whereof shall be supplied to the parties;
(m) Liberty reserved to the petitioner to challenge the order, if required and desired;
(n) Equally, liberty reserved to the parties to take recourse to such other remedies as are otherwise available in accordance with law;
(o) 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;
(p) We have not expressed any opinion on merits and all issues are left open;
(q) If possible, proceedings be conducted through digital mode;
The instant petition sands disposed of in the aforesaid terms.
Interlocutory Application(s), if any, also stands disposed of.
Learned counsel for the respondents undertakes to
6/6 communicate the order to the appropriate authority through electronic mode.
(Sanjay Karol, CJ) ( Partha Sarthy, J) KC Jha/chn AFR/NAFR CAV DATE Uploading Date 20.12.2022 Transmission Date