Patna High Court
Shiv Kishor Construction Private ... vs The Union Of India Through The Principal ... on 25 September, 2020
Bench: Chief Justice, S. Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.7374 of 2020
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Shiv Kishor Construction Private Limited, 404 Mundeshwari Enclave
Aakashwani Road, Khajpura, Patna-800014, GSTN ID No.
10AARCS2829R1ZQ, through its Director namely Shiv Kishor Roy, aged
about 43 years, Gender Male, Son of Sri Ramdeo Roy, Resident of Said
Nagar, P.S.-Laheriasarai, District-Darbhanga.
... ... Petitioner/s
Versus
1. The Union of India through the Principal Chief Commissioner of Central
Tax, Government of India, New Delhi.
2. The Principal Commissioner of Central Tax, Government of India, New
Delhi.
3. The Commissioner Central Tax, Government of India, New Delhi.
4. The State of Bihar through the Principal Chief Commissioner, State Tax,
Bihar, Patna.
5. The Chief Commissioner, State Tax, Bihar, Patna.
6. The Joint Commissioner, State Tax, Patna Central Circle, Patna.
7. The Deputy Commissioner, State Tax, Patna Central Circle, Patna.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Ranjeet Kumar, Advocate
For the Respondent/s : Mr.Dr.K.N.Singh (ASG)
Mr.Vikash Kumar, SC 11
Mr.Alok Kumar Agrawal, Advocate
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE S. KUMAR
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 25-09-2020
Petitioner has prayed for the following relief(s):-
"(i) For setting aside the order dated 31.01.2020
passed by the Deputy Commissioner of State Tax, Patna
Central Circle. Bihar, Patna in exercise of the
jurisdiction conferred under Section 74(1) of the Bihar
Goods and Services Tax Act, 2017, whereby it was
observed that the petitioner in his Return submitted in
Patna High Court CWJC No.7374 of 2020 dt.25-09-2020
2/4
GSTR-3B for the month of April 2019 to June 2019
shown supply of Rs. 51974600.10 whereas as per TDS
Return GSTR 2A the supply appears to be Rs.
62534562.00 and in this manner the petitioner
concealed/suppressed/evaded supply of Rs.10559962.00
and accordingly Tax, Interest and Penalty was assessed
for Rs. 3872760.00 The order is completely without
jurisdiction as same was issued without complying
the mandatory provision, i.e, Section 61 of the
Central/Bihar Goods and Services Tax Act, 2017. The
order is bad in law on account
of another fact that the show cause notice under Section
73(5)/74(5) was ordered to be issued on 16.01.2020, but
same was served through mail only on 25.01.2020, on
that day the father of the Learned Tax Consultant
(Advocate) had died and next day i.e. 26 th January was a
national holiday it was impossible to file reply in one
day as the last date of submission of reply was
27.01.2020.
(ii) For setting aside the order dated 02.03.2020, issued by the Deputy Commissioner, State Tax, Patna Central Circle Patna, whereby final order has been passed under Section 74 (9) of the Central Goods and Services Tax Act, 2017 and it has been ordered to issue DRC-07 of Rs. 39,21,914/- inspite of the fact that the same authorities vide show cause notice (9) of the Central Goods and Services Tax Act, 2017 and it- has been ordered to issue DRC-07 of Rs. 39,21,914/- inspite of the fact that the same authorities vide show cause notice dated 08.02.2020, directed the petitioner to submit his reply show cause on or before 07.03.2020 but the final order was passed 02.03.2020 itself, in gross violation of principle of natural iustice. The order is also bad in law and completely without jurisdiction for the reason of non- compliance of mandatory requirement of Section 61 of the Central/Bihar Goods and Services Tax Act, 2017.
(iii) For setting aside the consequential DRC-07 dated 04.03.2020, issued by the office of the Deputy Commissioner of State Tax, Patna Central Circle, Bihar, Patna whereby the petitioner has been directed to deposit the tax + interest + penalty, i.e., total Rs. Patna High Court CWJC No.7374 of 2020 dt.25-09-2020 3/4 39,21,914/ by 07.03.2020, failing which proceeding shall be initiated for recovery of the outstanding dues.
(iv) The Petitioner further prays that after setting aside the aforementioned impugned orders, the matter be remanded back to the respondents authorities with a direction to comply the mandatory requirement envisaged under Section 61 of the Central / Bihar Goods and Service Tax Act, 2017, as the whole disputes related to the scrutiny of return and the matter may be resolved in exercise of jurisdiction under Section 61 of the Act, as the petitioner has not at all evaded /concealed / suppressed its supply, and the difference amount of gross supply including Patrol and Diesel and all taxes added, which are Non-GST item as per Section 9 of the Act, 2017, read with the Curious case of Non-GST Goods available on website of Taxguru.in.
Learned counsel for the State Sri Vikash Kumar has been extremely fair in his submission.
It is not disputed that one of the impugned orders stands passed in violation of principles of natural justice.
Impugned order dated 2nd of March, 2020 is passed by the Deputy Commissioner of State Tax, Patna Central Circle, Bihar, Patna who issued a notice asking the petitioner to show cause by a particular date. However, for unexplained reasons and circumstances, without any prior intimation or knowledge, the matter was preponed and without affording any opportunity of hearing, decide, holding the view of the revenue. The order does entail civil and pecuniary consequences, causing prejudice to the petitioner. On all fours, principles of natural justice stand Patna High Court CWJC No.7374 of 2020 dt.25-09-2020 4/4 violated.
As such on this short ground alone, the impugned order dated 02.03.2020 and the resultant order dated 04.03.2020 passed by the Deputy Commissioner of State Tax, Patna Circle, Bihar, Patna are quashed and set aside with the matter remanded back to the authority for consideration afresh.
We direct the petitioner to appear before the said authority on 12.10.2020 at 10.30 A.M. who shall, after complying with the principles of natural justice, pass a fresh order. It shall be open to the petitioner to raise all the issues, including the one agitated in the present petition, which the Officer shall be obliged to decide the same.
With the aforesaid observation/direction, the writ petition stands allowed.
(Sanjay Karol, CJ) ( S. Kumar, J) pallavi/-
AFR/NAFR CAV DATE Uploading Date 29.09.2020 Transmission Date