Ex-parte orders violates principles of natural justice & entails civil consequences

National Co-operative Consumer Federation of India Limited Vs State of Bihar (Patna High Court)

The Hon’ble Patna High Court in National Co-operative Consumer Federation of India Limited v. State of Bihar [Civil Writ Jurisdiction Case No.16790 of 2022 dated December 9, 2022] set aside the ex-parte rejection orders passed by the Revenue Department, owing to the violation of natural justice principles.

Facts:

This petition has been filed by National Co-operative Consumer Federation of India Limited (“the Petitioner”) challenging four ex-parte appeal orders, summary orders issued in form GST DRC-07 (“the Impugned Orders”) passed by the Revenue Department (“the Respondent”). The Petitioner submitted that the Impugned Orders passed were in violation of principles of natural justice.

Issue:

Whether the ex-parte Impugned Orders passed by the Respondent were in violation of principles of natural justice?

Held:

The Hon’ble Patna High Court in Civil Writ Jurisdiction Case No.16790 of 2022 held as under:

• Noted that, the Impugned Orders appeared to be ex parte in nature, which is bad in law due to the reasons of violation of the Principles of Natural Justice i.e. Fair opportunity of hearing. Also, sufficient time was not given to the Petitioner to represent its case and Impugned Orders 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.
• Held that, ex-parte Impugned Orders passed are in violation of the Principles of Natural Justice, entails civil consequences.
• Stated that, the Respondent should not have adjudicated the matter on the attending facts and circumstances and all the issues of fact and law ought to have been dealt with, even if the proceedings were ex parte in nature.
• Further held that, opportunity of hearing shall be afforded to the parties to place on record all essential documents and materials.
• Quashed and set aside the Impugned Orders
• Directed as under:
• To immediately de-freezing/de-attaching of the bank account(s) of the Petitioner, if attached.
• The Respondent shall decide the case on merits expeditiously, within a period of 2 months from the date of appearance of the petitioner, after complying with the principles of natural justice and pass a speaking order assigning reasons.
• no coercive steps shall be taken against the Petitioner, during pendency of the case
• The Respondent shall pass a fresh order only after affording adequate opportunity to all concerned, including the Petitioner;

FULL TEXT OF THE JUDGMENT/ORDER OF PATNA HIGH COURT

Heard learned counsel for the parties.

The petitioner has prayed for the following relief/s :-

“1……………. ..for issuing writ of mandamus and other appropriat ewrit for seeking direction to the respondent to hear the case treating one case & for allowing ITC even ITC non-reflection transaction in GSTR-2A.

2. The petitioner has preferred an application u/s 117 of CGST Act 2017 against the appellate common order dated 15.03.2022 vide in GST Appeal Case No. GST/PTC-51/2020-21 & in Appeal Case No. GST/PTC 52/2020-21 arise against the assessment order dated 07.03.2020 & 10.02.2021 respectively.”

It is brought to our notice that vide impugned order dated 15.03.2022 passed by the Respondent No. 1 namely the State of Bihar through the Additional Commissioner of State Tax (Appeal), Patna West Division, Patna in GST Appeal Case No. GST/PTC-51/2020-21 and Appeal Case No.GST/PTC 52/2020-21, the appeal of the petitioner against the orders dated 07.03.2020 and 10.02.2021 passed by the Respondent No. 3 namely Assistant Commissioner of State Tax, Centra Circle, Patna in GSTIN-10AAAAN0109N1Z3 and the summary of order dated 13.03.2020 issued in form GST DRC-07, has been rejected. The orders appeared to be ex parte in nature.

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 and limitation shall not be allowed to come in the way. 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; (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.

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 order dated 15.03.2022 passed by the Respondent No. 1 namely the State of Bihar through the Additional Commissioner of State Tax (Appeal), Patna West Division, Patna in GST Appeal Case No. GST/PTC-51/2020-21 and Appeal Case No. GST/PTC 52/2020-21, the orders dated 07.03.2020 and 10.02.2021 passed by the Respondent No. 3 namely Assistant Commissioner of State Tax, Centra Circle, Patna in GSTIN-10AAAAN0109N1Z3 and the summary of order dated 13.03.2020 issued in form GST DRC-07;

(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) 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.

(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;

(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.

(f) Petitioner undertakes to appear before the Assessing Authority on 23.12.2022 at 10:30 A.M., if possible through digital mode;

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

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

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

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

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

(l) 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;

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

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

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

(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;

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

(r) 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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