Ex-parte assessment order passed in violation of principles of natural justice entails civil consequences

Balram Singh Vs Union of India (Patna High Court)

The Hon’ble Patna High Court in M/s Balram Singh v. Union of India & Ors. [Civil Writ Jurisdiction Case No. 88 of 2023 dated January 20, 2023] quashed and set aside the ex-parte assessment order passed by the Revenue Department rejecting the Input Tax Credit (“ITC”) claim of the assessee and imposing the tax liability of INR 10,06,826/- , on the grounds that it was passed in violation of the principles of natural justice without providing opportunity of hearing or sufficient time to the assessee to represent its case, which entails civil consequences. Held that, opportunity of hearing shall be afforded to the assessee to place on record all essential documents and materials.

Facts:

This petition has been filed by M/s Balram Singh (“the Petitioner”) challenging the ex parte summary assessment orders dated February 16, 2020 and February 18, 2020 (“the Impugned Orders”) passed by the Revenue Department (“the Respondent”) for the period October 2018 to March 2019 wherein, ITC claim of the Petitioner was rejected and tax amounting to INR 10,06,826/- including penalty/interest was imposed without providing any further notice to the Petitioner. Further, the Respondent seized INR 20,00,000/- from the cash credit ledger of the Petitioner by way of recovery against the total liability.

Issue:

Whether the Impugned Orders passed by the Respondent are in violation of principles of natural justice?

Held:

The Hon’ble Patna High Court in Civil Writ Jurisdiction Case No. 88 of 2023 held as under:

• Opined that, the Impugned Order is bad in law on the grounds of violation of principles of natural justice, as no fair opportunity of hearing or sufficient time was not afforded to the Petitioner to represent its case and the Impugned Order being ex parte in nature, does not assign any sufficient reasons by the Respondent for determining the amount due and payable by the Petitioner.
• Held that, the ex parte Impugned Order passed in violation of the principles of natural justice, entails civil consequences and opportunity of hearing shall be afforded to the Petitioner to place on record all essential documents and materials.
• Set aside the Impugned Orders with a direction to Petitioner to deposit 20% of the amount of the demand raised, before the Respondent within four weeks. Further stated that, 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.
• Directed the Respondent, to de-freeze/ de-attach the bank account(s) of the Petitioner, if attached in reference to the proceedings and to decide the case on merits after complying with the principles of natural justice and not to take any coercive steps against the Petitioner during pendency of the case.
• Further directed the Petitioner, to fully cooperate in proceedings and not to take unnecessary adjournment.
• Further directed the Respondent to decide the case on merits within a period of two months and shall pass a speaking order, assigning reasons, which can be challenged by the Petitioner, if required and desired.

FULL TEXT OF THE JUDGMENT/ORDER OF PATNA HIGH COURT

Petitioner has prayed for following relief (s) : –

“(i) For issuing a writ of certiorari or any other appropriate writ quashing/ setting aside the summary assessment orders dated 16.02.2020 and 18.02.2020 (Annexure- 1 & 2) passed by Respondent No. 6 for period October 2018 to March 2019 of F.Y 2018-19 whereby and whereunder the ex parte assessment order has been passed for the aforesaid period and thereby a total liability of Rs.10,06,826/- (with breakup as – (a) CGST worth Rs.4,22,793/- with interest Rs.80,620/- thereupon; and (b) SGST worth Rs.4,22,793/- with interest Rs.80,620/- has been imposed on the petitioner;

(ii) For issuing a writ of certiorari or any other appropriate writ quashing/ setting aside the demand issued in form DRC 07- dated 18.02.2020 (Reference No.ZA100220020708C) (Annexure-3) passed by Respondent No. 6 for OCT- 2018 to MAR 2019 of F.Y 2018-19 whereby and whereunder the ex-parte demand order DRC 07 have been issued under the CGST/BGST Rules, 2017 for the aforesaid period and through the said DRC-07 an ex parte demand has been raised for the aforesaid period a total liability of Rs.10,06,826/-(with breakup as – (a) CGST worth Rs.4,22,793/-with interest Rs.80,620/- thereupon; and (b) SGST worth Rs.4,22,793/- with interest Rs.80,620/- has been imposed on the petitioner;

(iii) For issuing a writ of mandamus or any other appropriate writ directing the Respondents not take any coercive action including recovery from bank account and third parties until pendency of the present writ application;

(iv) For issuing writ of mandamus and thereby directing the Respondents to refund a sum of approx. Rs. 20,00,000/- which has been seized by the respondents from the cash credit ledger of the petitioner by way of recovery against the total liability;

(v) For issuance of appropriate direction including the mandamus directing the respondents to pass fresh assessment order for the F.Y. 2018-19 upon considering the annual assessment filed by the petitioner for the said financial year to ascertain the actual tax liability, if any on the petitioner for the period April 2018 to March 2019;

(vi) For holding that the impugned assessment order dated 16.02.2020 and 18.02.2020 (have been issued in most illegal manner by Respondent No.6 before submitting the GSTR-9/9C and without examining the records and the supporting materials uploaded by the petitioner on its web-portal of GST;

(vii) For passing any such other order/orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.”

It is brought to our notice that vide impugned orders dated 16.02.2020 and 18.02.2020 passed by the Respondent No. 6, namely the Assistant Commissioner of State Tax, Saharsa Circle, Saharsa, the input tax credit claim of the petitioner has been rejected and tax amounting to Rs. 10,06,826/- , including penalty/interest, has been imposed, without providing any further notice to the petitioner.

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 orders dated 16.02.2020 and 18.02.2020 passed by the Respondent No. 6, namely the Assistant Commissioner of State Tax, Saharsa Circle, Saharsa;

(b) The petitioner undertakes to deposit twenty per cent of the amount of the demand raised before the Assessing Officer. This shall be done within four weeks.

(c) 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;

(d) 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.

(e) Petitioner undertakes to appear before the Assessing Authority on 06.02.2023 at 10:30 A.M., if possible through digital mode;

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

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

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

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

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

(k) 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;

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

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

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

(o) 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;

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

(q) If possible, proceedings 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.

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