Quashed

Gammon Engineers and Contractors Pvt. Ltd. v. The State of Bihar

Patna HC5 Apr 2022CWJC/3742/2022

Case brief

AI extract

What is this about?

The Patna High Court quashed an ex parte appellate order in a GST dispute due to violation of natural justice and lack of speaking reasons, remanding the case for a fresh trial on merits with directions for a speaking order.

What did the court decide?

Quashed the appellate order dated 03.02.2022 and the underlying order dated 24.02.2021 and remanded the case on merits with directions to pass a speaking order within two months.

Gammon Engineers and Contractors Pvt. Ltd. Vs The State… — GST and Indirect Tax | Patna HC (2022)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.3742 of 2022

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Gammon Engineers and Contractors Pvt. Ltd. an incorporated company having its branch office H/o Mr. Pashupati Kumar Paras, P.S.-Patna Airport, Moh-Kautilya Nagar, P.O.-B.V. College, Patna, Bihar-800014 through its authorized representative namely Rajiv Kumar male aged about 41 years, son of Shri Arun Kumar Shahi, resident of Flat No. 302, Premshree Residency, Road No. -3E, New Patliputra Colony, Patna-800013.

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... ... Petitioner/s

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Versus

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The State of Bihar through the Principal Secretary cum Commissioner, Department of State Taxes, Government of Bihar, Patna.

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The Additional Commissioner of State Taxes (Appeals) Central Division, Patna.

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The Assistant Commissioner of State Taxes, Patliputra Circle, Patna (Financial Year 2018-2019).

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... ... Respondent/s

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====================================================== Appearance : For the Petitioner/s : Mr.Gautam Kumar Kejriwal, Advocate For the Respondent/s : Mr.Vikash Kumar (SC11) ======================================================

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CORAM: HONOURABLE THE CHIEF JUSTICE

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and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

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Date : 05-04-2022

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Heard learned counsel for the parties.

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Petitioner has prayed for following reliefs:-

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a) For issuance of writ in the nature of certiorari for quashing of the order dated

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Patna High Court CWJC No.3742 of 2022 dt.05-04-2022

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03.02.2022 issued vide memo number 76/Patna by the respondent number 2 (hereinafter referred to as the appellate authority for short) whereby the appeal preferred by the petitioner under section 107 of the Central Goods and Services Tax Act 2017 (hereinafter referred to as the central act 2017 for short) and Bihar Goods and Services Tax Act 2017 (hereinafter referred to as the Bihar act 2017 for short) has been rejected;

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b) For issuance of writ or order or direction in the nature of certiorari for quashing of the order dated 24.02.2021 passed by the respondent number 3 (hereinafter referred to as the assessing authority short) under section 73 of the central act 2017 and Bihar act 2017 and also for quashing of the summary of order issued in form GST DRC- 07 dated 23.02.2021 and also quashing of the rectification order dated 24.02.2021 issued in form GST – 08 dated 24.02.2021 passed by the same respondent assessing authority;

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c) For further restraining the respondents from taking any coercive action against the petitioner for recovery of the amount of tax and interest in terms of the impugned orders during the pendency of the present writ application;

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d) For further holding and a declaration that mere absence of auto populated GSTR – 2A resulting in mismatch with the return filed by the petitioner in form GSTR- 3B cannot deprive the petitioner from the benefit of input tax credit;

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e) For further holding and a declaration that the petitioner cannot be deprived of the benefit

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Patna High Court CWJC No.3742 of 2022 dt.05-04-2022

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of input tax credit for the defaults committed by the supplier / seller as the taxes paid by the petitioner to such supplier/seller constitutes due discharge of liability from the ends of the petitioner and also that such payment of tax to the supplier/seller is as good as payment of tax to the government insofar as the true purport and meaning of section 16(2) (c) of the central act 2017 and Bihar act 2017 is concerned;

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f) For grant of any other relief or reliefs to which the petitioner is found entitled in the facts and circumstances of the case.”

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It is brought to our notice that vide impugned order dated 03.02.2022, passed by the Respondent No. 2, namely, the Additional Commissioner of State Taxes (Appeals), Central Division, Patna, in Appeal Case No. AD1003210016911, the appeal of the petitioner against the order dated 24.02.2021, passed by Respondent No. 3, namely the Assistant Commissioner of State Taxes, Patliputra Circle, Patna, in GSTIN 10AAECN8067D1ZR; and summary of order dated 23.02.2021 in Form GST DRC-07 for the period 01.04.2018 to 31.03.2019, has been rejected by a cryptic, misconceived and non-speaking order.

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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

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Patna High Court CWJC No.3742 of 2022 dt.05-04-2022 4/8

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merits. Also, during pendency of the case, no coercive steps shall be taken against the petitioner.

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Statement accepted and taken on record.

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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.

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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 order dated 03.02.2022,

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Patna High Court CWJC No.3742 of 2022 dt.05-04-2022 5/8

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passed by the Respondent No. 2, namely, the Additional Commissioner of State Taxes (Appeals), Central Division, Patna, in Appeal Case No. AD1003210016911; order dated 24.02.2021, passed by Respondent No. 3, namely the Assistant Commissioner of State Taxes, Patliputra Circle, Patna, in GSTIN 10AAECN8067D1ZR; and summary of order dated 23.02.2021 in Form GST DRC-07;

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(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;

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(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.

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(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;

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Patna High Court CWJC No.3742 of 2022 dt.05-04-2022 6/8

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(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.

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(f) Petitioner undertakes to appear before the Assessing Authority on 20.04.2022 at 10:30 A.M., if possible through digital mode;

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(g) The Assessing Authority shall decide the case on merits after complying with the principles of natural justice;

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(h) Opportunity of hearing shall be afforded to the parties to place on record all essential documents and materials, if so required and desired;

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(i) During pendency of the case, no coercive steps shall be taken against the petitioner.

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

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(k) Petitioner through learned counsel undertakes to fully cooperate in such proceedings and not take unnecessary adjournment;

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(l) The Assessing Authority shall decide the case on merits expeditiously, preferably within a period of two

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Patna High Court CWJC No.3742 of 2022 dt.05-04-2022 7/8

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months from the date of appearance of the petitioner;

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

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

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

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(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;

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

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(r) If possible, proceedings during the time of current Pandemic [Covid-19] be conducted through digital mode;

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The instant petition sands disposed of in the aforesaid terms.

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Interlocutory Application(s), if any, also stands disposed of.

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Patna High Court CWJC No.3742 of 2022 dt.05-04-2022 8/8

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Learned counsel for the respondents undertakes to communicate the order to the appropriate authority through

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electronic mode.

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(Sanjay Karol, CJ)

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( S. Kumar, J)

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Sanjay/-Ranjan

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AFR/NAFR	NAFR
CAV DATE	NA
Uploading Date	13.04.2022
Transmission Date	NA

Gammon Engineers and Contractors Pvt. Ltd. v. The State of Bihar

Case brief

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Gammon Engineers and Contractors Pvt. Ltd. v. The State of Bihar

Case brief

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