Petitioner has prayed for the following relief(s):-
“i. For quashing of order dated 24.12.2020 passed in Appeal no. GST/GM No. 59/19-20 (period 01.09.2019-30.09.2019) passed by the Additional
Commissioner, Commercial Taxes (Appeal), Patna, West Division, Patna whereby and whereunder the Additional Commissioner (Appeal) dismissed
the application without condoning the delay in filing the appeal and without considering the fact that the copy of order under section 62 of SGST Act
was never communicated to the petitioner and while imposing the tax the authority not considered the fact that the petitioner having no liability of tax
in the said period.
ii. For quashing of order dated 06.11.2019 issued vide notice Reference No. 1494 dated 06.11.2019 issued by Assistant Commissioner of State Tax,
Gandhi Maidan Circle, Patna, whereby and whereunder an amount of Rs. 3,47,236/- was imposed to the petitioner on presumption without considering
that no tax incurred during the said period.
iii. For restraining the respondent authorities from recovery of tax amount from the petitioner during the pendency of writ application.
It is brought to our notice that vide impugned order dated 24.12.2020 passed by the Additional Commissioner, Commercial Taxes (Appeal), Patna,
West Division, Patna in Appeal Case No. GST/GM-59/19-20, the appeal of the petitioner against the order dated 06.11.2019 passed by the Assistant
Commissioner of Commercial Tax, Gandhi Maidan Circle, Gandhi Maidan, Patna, in GSTIN-10AAMCS9135P1ZU in Reference No. 1494 has been
rejected merely on the grounds of being barred by limitation.
Both the orders were ex parte in nature.
In our considered view, the delay stands sufficiently explained on account of COVID restrictions.
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 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 24.12.2020 passed by the Additional Commissioner, Commercial Taxes (Appeal), Patna, West
Division, Patna in Appeal Case No. GST/GM-59/19-20 as also order dated 06.11.2019 passed by the Assistant Commissioner of Commercial Tax,
Gandhi Maidan Circle, Gandhi Maidan, Patna, in GSTIN-10AAMCS9135P1ZU in Reference No. 1494;
(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 reference to the proceedings, subject matter
of present petition. This shall be done immediately.
(f) Petitioner undertakes to appear before the Assessing Authority on 18th of August, 2021 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 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 sands disposed of in the 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.
