Case Law Details
Shiv Kishor Construction Private Limited Vs UOI (Patna High Court)
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, decided, 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 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 Central Circle, Bihar, Patna are quashed and set aside with the matter remanded back to the authority for consideration afresh.
FULL TEXT OF THE JUDGMENT/ORDER OF PATNA HIGH COURT
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 Section74(1) of the Bihar Goods and Services Tax Act, 2017, whereby it was observed that the petitioner in his Return submitted in GSTR-3B for the month of October 2018 to March 2019 shown supply of Rs. 78594038.40 whereby as per TDS Return GSTR 2A the supply appears to be Rs. 99116990.00 and in this manner the petitioner concealed/suppressed/evaded supply of Rs. 20511951.60 and accordingly Tax, Interest and Penalty was assessed for Rs. 5440224.00. 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. 26th 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 02.03.2020issued by the Deputy Commissioner, State Tax, Patna Central Circle, Bihar, Patna whereby final order has been passed under Section 74(9) of the Central Goods and Services Act, 2017 and it has been ordered to issue DRC-07 of Rs. 5440224.00 in spite 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 on 02.03.2020 itself, in gross violation of principle of natural justice. 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. 5440224/-, 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.
v. For any other relief for which the petitioner may be deemed entitled to.”
Learned counsel for the State Sri A. K. Rastogi 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, decided, 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 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 Central 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 29.07.2020 at 10: 30 A.M. who shall, after complying with the principles of natural justice, pass a fresh order.
With the aforesaid observation/direction, the writ petition stands allowed.
