IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.6204 of 2011 ====================================================== Padam Gas Distributor, a proprietorship concern having its office at G.H. Road, Forbesganj, P.O. & P.S. Forbesganj through its Proprietor Padam Kumar Badalia, son of Shri Rikhab Chand Bedalia, G.H. Road, P.O. & P.S. Forbesganj, District Forbesganj .... .... Petitioner/s Versus 1. Commissioner of Commercial Taxes having its office at Vikas Bhawan, Patna, 2. Jt. Commissioner of Commercial Taxes (Audit) having its office at Bhagalpur, 3. Asstt. Commissioner of Commercial Taxes (Audit) having its office at Bhagalpur .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. D.V. Pathy, Advocate. For the Respondent/s : Mr. Lalit Kishore, AAG 1 & Mr. Vikash Kumar, AC to AAG 1. ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 12. 18-08-2011 This petition under Article 226 of the Constitution is filed by one Padam Gas Distributor to challenge the order dated 10th August 2010 made under Section 31 of the Bihar Value Added Tax Act, 2005 (hereinafter referred to as `the Act’) and the consequential notice of demand dated 18th August 2010. Learned Advocate Mr. D.V. Pathy has appeared for the petitioner. He has submitted that the impugned order under Section 31 of the Act has been made pursuant to the audit report dated 11th June 2009. The petitioner is a distributor of LPG gas cylinder and the tax is deducted at source by the Indian Oil Patna High Court CWJC No.6204 of 2011 (12) dt.18-08-2011 2 / 3 2 Corporation. There is no question of payment of any tax or evasion of tax by the petitioner. The respondents have, however, made audit where the owner of the business is shown to be one Zqakir Ul Hoda and presence of said Zqakir Ul Hoda and one Advocate Shri M.L. Dev has been recorded. He has submitted that the petitioner’s business has no connection whatsoever with the aforesaid Zqakir Ul Hoda or Shri M.L. Dev. The factum of the audit report is, therefore, doubtful. In absence of any audit report, the respondents do not gain power to act under Section 31 of the Act. The notice issued under Section 31 of the Act, the consequential order made on 10th August 2010 and the demand notice dated 18th August 2010 are a nullity. The petition is contested by learned Advocate Mr. Vikash Kumar. He has submitted that the reference to the aforesaid Zqakir Ul Hoda and Shri M.L. Dev on the audit report is a typographical error. In view of Section 34 of the Act, such mistake would not vitiate the audit report or the consequent action taken by the department. In view of the disputed question of facts involved in the writ petition, the writ petition is not maintainable. It is not in dispute that a statutory appeal lies against the impugned order dated 10th August 2010. In our opinion, the ends of justice will be met if the petitioner is relegated to the statutory power of appeal before the appellate authority and, pending the appeal, it is protected. For the aforesaid reason, the writ petition is dismissed. The petitioner shall be at liberty to challenge the impugned order dated 10th August 2010 before the appellate authority. In the event the writ petitioner files appeal within fifteen Patna High Court CWJC No.6204 of 2011 (12) dt.18-08-2011 3 / 3 3 days from today, there shall not be coercive recovery from the petitioner pursuant to the demand notice dated 18th August 2010 pending the appeal before the appellate authority. Dilip. (R.M. Doshit, CJ) (Birendra Prasad Verma, J)