Court is not prevented from interfering if the order is defective in law as it is a violation of natural justice norms: Patna High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.422 National Insuranc Co Ltd having its regional Office at Fourth Floor Sone Bhawan Bir Chand Patel Path District Patna 800001 through its authorised representative namely Gajendra Kumar Sharma Male aged about 42 Years Son of Karan Lal Sharma Resident of C 46a Jiwan Park Uttam Nagar Som Bazar Road D.K. Mohan garden West Delhi Delhi 110059 ... Petitioner s The State of Bihar through the Principal Secretary Cum Commissioner Department of State Taxes Government of Bihar Patna The Additional Commissioner of State Taxes Central Division The Assistant Commissioner of State Taxes Patliputra Circle Patna ... Respondent s Mr.Gautam Kumar Kejriwal Advocate Mr.Vivek PrasadDate : 17 01 2022 Petitioner has prayed for the following relief(s “a) for issuance of a writ in the nature of certiorari for quashing of an appellate order dated 13.11.2021 passed by the respondent number 2 and issued vide memo number 669 in Appeal Case Number AD1008210131016 whereby the appeal preferred by the petitioner against the order dated 24.02.2021 passed by the respondent No. 3 has been rejected without appreciating the factual and legal issues contended and raised by the petitioner in appeal Patna High Court CWJC No.422 dt.17 01 2022 b) For further issuance of a writ in the nature of certiorari for quashing of the order dated 24.02.2021 passed by the respondent number 3 under Section 73 of the Bihar Goods And Services Tax Act 2017read with Central Goods And Services Tax Act 2017c) For further holding and a declaration that the impugned order dated 24.2.2021 passed by the respondent No. 3 is an erroneous exercise of jurisdiction by the respondent number 3 as the same is not preceded by a proceeding under Sections 61 of the Bihar act 2017 read with central act 2017 d) For further issuance of a writ or order or direction restraining the respondents from taking any coercive action in terms of section 79 of the Bihar act 2017 read with Central Act 2017 against the petitioner for recovery of the amount in demand in terms of the impugned order of assessment dated 24.02.2021 passed by the respondent No. 3 during the pendency of the application or writ e) For grant of any other relief or reliefs to which the petitioner is found entitled in the facts and circumstances of this case.” It is brought to our notice that vide impugned order dated 13.11.2021 passed by the Respondent No. 2 namely the Additional Commissioner of State Taxes Central Division Patna in Appeal Case No. AD1008210131016 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 has been rejected allegedly without Patna High Court CWJC No.422 dt.17 01 2022 appreciating the factual and legal issues contended and raised by the petitioner in appeal 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 violation of principles of natural justice i.e. Fair opportunity of hearing. No sufficient time was afforded to the petitioner to represent his case 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 Patna High Court CWJC No.422 dt.17 01 2022 the following mutually agreeable terms We quash and set aside the impugned order dated 13.11.2021 passed by the Respondent No. 2 namely the Additional Commissioner of State Taxes Central Division Patna in Appeal Case No. AD1008210131016 and the order dated 24.02.2021 passed by Respondent No.3 namely the Assistant Commissioner of State Taxes Patliputra Circle Patna 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) 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. d) Petitioner undertakes to appear before the Assessing Authority on 7th February 2022 at 10:30 A.M. if possible through digital mode e) The Assessing Authority shall decide the case on merits after complying with the principles of natural justice Patna High Court CWJC No.422 dt.17 01 2022 f) Opportunity of hearing shall be afforded to the parties to place on record all essential documents and materials if so required and desired g) During pendency of the case no coercive steps shall be taken against the petitioner. h) The Assessing Authority shall pass a fresh order only after affording adequate opportunity to all concerned including the writ petitioner i) Petitioner through learned counsel undertakes to fully cooperate in such proceedings and not take unnecessary adjournment j) 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 k) The Assessing Authority shall pass a speaking order assigning reasons copy whereof shall be supplied to the parties l) Liberty reserved to the petitioner to challenge the order if required and desired m) Equally liberty reserved to the parties to take recourse to such other remedies as are otherwise available in accordance with law Patna High Court CWJC No.422 dt.17 01 2022 n) 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 and all issues are left open o) We have not expressed any opinion on merits p) If possible proceedings during the time of current Pandemicbe conducted through digital The instant petition sands disposed of in the Interlocutory Application(s) if any also stands Learned counsel for the respondents undertakes to communicate the order to the appropriate authority through mode aforesaid terms. disposed of. electronic mode. Sanjay Karol CJ) ( S. Kumar J K.C.Jha DKS 

Summary: Despite the statutory remedy, this Court is not prevented from interfering if, ex facie, obtain the opinion that the order is defective in law as it is a violation of natural justice norms, such as the right to a fair hearing is upheld by the High Court of Patna through the learned bench led by HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR in the case of National Insuranc Co Ltd Vs. The State of Bihar (Civil Writ Jurisdiction Case No.42 of 2022) Brief facts of the case are that the petitioner has requested for the issuance of a writ of certiorari to overturn an appellate order dated 13.11.2021 passed by the respondent and issued via memo in Appeal Case, in which the petitioner’s appeal against the respondent’s order dated 24.02.2021 was dismissed without consideration of the factual and legal issues contended and raised by the petitioner in appeal. The petitioner has asked for the issuance of a writ in the nature of certiorari to quashing the respondent’s order dated 24.02.2021 passed under Section 73 of the Bihar Goods And Services Tax Act, 2017 read with the Central Goods And Services Tax Act, 2017, as well as a holding and declaration that the impugned order dated 24.02.2021 passed by the respondent is an erroneous exercise of jurisdiction by the respond. During the pendency of the instant writ application or thereafter jurisdiction by the respondent, the petitioner has requested the issuance of a writ or order or direction restraining the respondents from taking any coercive action against the petitioner in terms of section 79 of the Bihar Act 2017 read with the Central Act, 2017 for recovery of the amount in demand in terms of the impugned order of assessment dated 24.02.2021 passed by the respondent during the pendency. Court noticed that, pursuant to the impugned order dated 13.11.2021 issued by the Respondent, namely the Additional Commissioner of State Taxes (Appeal), Central Division, Patna in Appeal Case, the petitioner’s appeal against the order dated 24.02.2021 issued by the Respondent, namely the Assistant Commissioner of State Taxes, Patliputra Circle, Patna, has been dismissed, allegedly without appreciating the factual and legal. The Revenue’s learned counsel says he has no objection to the case being remanded to the Assessing Authority to be decided again. In addition, the matter will be decided on its merits. Furthermore, no coercive measures against the petitioner may be done while the case is pending. The parties’ learned counsel, after reviewing the record, are of the considered opinion that, despite the statutory remedy, this Court is not prevented from interfering if, ex facie, and obtain the opinion that the order is defective in law as (a) it is a violation of natural justice norms, such as the right to a fair hearing. The petitioner was not given enough time to plead his case; and (b) the order, which was issued ex parte, does not identify any sufficient grounds, even if decipherable from the record, as to how the officer arrived at the sum owing and payable by the assessee. The order, which was issued ex parte and in breach of natural justice principles, has civil ramifications. As a result, we dismiss the present writ petition on this single ground, quashing and setting aside the impugned order dated 13.11.2021 issued by the Respondent, Additional Commissioner of State Taxes (Appeal), Central Division, Patna in Appeal Case, as well as the order dated 24.02.2021 issued by the Respondent, namely the Assistant Commissioner of State Taxes, Patliputra Circle, Patna. The petitioner’s declaration that 10% of the total money is already deposited, which is a condition precedent to hearing the appeal, is correct. However, if the sum is not deposited for whatever reason(s), it must be done before the next date, and the court must order the de-freezing/de-attachment of the writ-bank petitioner’s account(s), if attached in reference to the proceedings, to be done immediately. Petitioner shall appear before the Assessing Officer on the 7th of February, 2022 at 10:30 a.m., before which date he shall fully comply with the provisions of law, and The Assessing Authority shall decide the case on the merits after adhering to the principles of natural justice, and Opportunity to place on record all essential documents and materials, if so required and desired, shall be afforded to the parties. During the pendency of the case, no coercive measures against the petitioner shall be taken, and The Assessing Authority shall pass a new order only after providing adequate opportunity to all parties involved, including the writ petitioner, and The Assessing Authority shall decide the case on the merits expeditiously, preferably within two months of the petitioner’s appearance, and The Assessing Authority shall pass a speaking order assigning reasons, copy of which shall be sent to the petitioner. The instant petition and Interlocutory Application sands disposed of and when a petitioner seeks such remedies as are ordinarily available in law before the appropriate venue, the matter will be handled in conformity with the law and in a timely manner. Click here to read the judgment