Patna High Court
M/S Great Eastern Hire Purchase Private … vs The State Of Bihar on 6 May, 2025
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad, Ashok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.18049 of 2024
======================================================
M/S Great Eastern Hire Purchase Private Limited, a Private Limited
Company having GSTIN-10AABCG1740K1Z4 and its office at 1st Floor,
Ganesh Dutt Complex New Dak Bunglow Road P.S.- Gandhi Maidan, P.O-
G.P.O Patna - 800001 through its Authorised Director Sri Mahendra Kumar
Baid, Gender- Male, aged about 68 years, Son of Punam Chand Baid,
Resident of 4F, Mohalla Moti Lal Nehru Road, Post Office - Sarat Bose Road
Police Station- Rabindra Sarobar, Kolkatta, West Bengal -700029
... ... Petitioner
Versus
1. The State of Bihar through The Principal Secretary, State Tax, Bihar, Patna
having its office at Kar Bhawan, Patna.
2. The Principal Secretary cum Commissioner, Department of State Taxes,
Government of Bihar, Patna.
3. Joint Commissioner of State Tax, Gandhi Maidan Circle, Patna.
4. Deputy Commissioner of State Tax, Gandhi Maidan Circle, Patna
5. Assistant Commissioner of State Tax, Gandhi Maidan Circle, Patna.
6. Additional Commissioner of State Tax (Appeals), Patna West Division,
Patna.
7. The Union of India, through the Under Secretary, Department of Revenue,
Govt. of India, New Delhi.
8. The Government of India, Ministry of Finance (Department of Revenue),
through the Principal Commissioner, CBIC, New Delhi.
... ... Respondents
======================================================
Appearance :
For the Petitioner : Mr. Bijay Kumar Gupta, Advocate
For the State : Mr. Vivek Prasad, Government Pleader 07
For the UoI : Mr. Anshuman Singh, Senior SC
Mr. Shivaditya Dhari Sinha, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 06-05-2025
Heard Mr. Bijay Kumar Gupta, learned counsel for the
petitioner and Mr. Vivek Prasad, learned Government Pleader No.-
Patna High Court CWJC No.18049 of 2024 dt.06-05-2025
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7 for the State. Mr. Anshuman Singh, learned Senior Standing
Counsel representing the Respondent Nos. 7 and 8 is also present.
2. This writ application has been filed for the following
reliefs:-
"i) For issuing of a writ of certiorari or any
other appropriate writ quashing/setting
aside the unlawful recovery order dated
24.08.2023
(as evident from Annexure-P-
4) through which Respondent No.5 had
recovered summary of demand bearing
Reference No.- ZA100919006325R dated
12.09.2019 (as contained in Annexure-P-2)
which was deemed to have been
withdrawn as per the Provision of Section
62(2) BGST/CGST Act 2017 (Annexure-
P3A, 3B) as the Petitioner had already filed
GSTR 3B for the month July 2019 on
19.9.2019 and paid the due tax which is
evident from GSTR 3B (Annex P-3)
ii) For issuing of a writ of certiorari or any
other appropriate writ quashing/setting
aside the unlawful recovery order dated
24.08.2023 (as evident from Annexure-P-
4) through which Respondent No. 5 had
recovered demand bearing Reference No.-
ZA100919006325R dated 12.09.2019 (as
contained in Annexure-P-2) without
application of mind as on the date of
Recovery Respondent No. 5 did not try to
verify whether return GSTR 3B for the
month July 2019 was filed or not which is
in gross violation of provision of section
62(2) BGST/CGST Act, 2017.
Patna High Court CWJC No.18049 of 2024 dt.06-05-2025
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iii) For a direction upon the respondents to
show cause as to how and under what
authority of law credit ledger and cash
ledger of the Petitioner was debited by
amount of Rs.1,11,87,352.00 and
Rs.28,592.00 respectively on dated
24.08.2023 in gross violation of Provision
of Section 62(2) BGST/CGST Act 2017
(Annex-P3A) as the Petitioner had already
filed GSTR 3B for the month July 2019 on
19.9.2019 and paid the due tax which is
evident from GSTR 3B (Annex-P3).
iv) For issuing of a writ of certiorari or any
other appropriate writ quashing/setting
aside the order of the Respondent No. 6,
the Additional Commissioner of State Tax
(Appeals), Patna West Division, dated
11.07.2024 (as contained in Annexure-
P5A) through which the Respondent No.
06 wrongly rejected the Appeal of the
Petitioner on the ground of limitation
however Petitioner’s appeal was filed
within the time limit prescribed under
Circular No 53/2023 CT Dated 02.11.2023
(Annex-P6) and thus the order is liable to
be set aside.
v) For issuing of a writ of certiorari or any
other appropriate writ/order commanding
the Respondents to refund petitioner;s tax
of Rs.1,12,15,944/- along with applicable
interest which was unlawfully recovered
from petitioner’s company credit/cash
ledger without providing any opportunity
of hearing in total disregard of principles of
natural justice.
Patna High Court CWJC No.18049 of 2024 dt.06-05-2025
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vi) For granting any other relief(s) to which
the petitioner is otherwise found entitled to
in accordance with law.”
Brief Facts of the Case
3. The grievance of the petitioner in the present writ
application is with respect to the orders as contained in Annexures
‘P2’, ‘P3’ and ‘P6’. It is stated that during the financial year 2019-
20, the petitioner company could not file its GSTR-3B return for
the month of July, 2019 up to 20.08.2019 i.e. the due date. For this
reason, the Respondent No. 3 issued a notice in Form GTRR-3A
under Section 46 read with Rule 68 on 21.08.2019 for failing to
file monthly return and requested the petitioner to file its return
within 15 days failing which it will be assessed according to
Section 62 of the Bihar Goods and Services Tax/Central Goods
and Services Tax Act, 2017 (hereinafter referred to as the
‘BGST/CGST Act‘).
4. It is stated that on 12.09.2019, the Respondent No. 4
passed an order by which a demand order in Form- GST ASMT-13
was ordered to be issued and served upon the petitioner but no
demand order in Form- GST ASMT-13 was ever issued to the
petitioner.
5. It is submitted that when the petitioner specifically
asserted in the writ application that no demand order in Form-
Patna High Court CWJC No.18049 of 2024 dt.06-05-2025
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GST ASMT-13 was ever served upon the petitioner, a patently
wrong and false statement came in the counter affidavit filed on
behalf of the respondents. The respondents not only denied the
claim of the petitioner that the demand order was never served
upon him, rather emphatically asserted in the counter affidavit that
the assessment order was served upon the petitioner through e-
mail.
Submissions on behalf of the Petitioner
6. Learned counsel for the petitioner submits that due to
non-issuance and service of the order of assessment in Form- GST
ASMT-13, the whole proceeding undertaken by Respondent No. 4
would stand vitiated.
7. Attention of this Court has been drawn towards
Section 62(1) read with Rule 100(1) of the BGST/CGST Act and
the rules framed thereunder respectively. A copy of the summary
of demand order in Form DRC-07 dated 12.09.2019 has been
brought on record as Annexure ‘P2’.
8. It is submitted that the Respondent No. 3 issued the
summary of demand order in the Form DRC-07 demanding tax
and interest of Rs.56,92,091.56/- under the BGST and
Rs.56,92,091.56/- under the CGST, total amounting to
Rs.1,13,84,183.12/-.
Patna High Court CWJC No.18049 of 2024 dt.06-05-2025
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9. The petitioner asserts that the petitioner filed its
GSTR 3B return on 19.09.2019 and paid due tax on it which was
within one month from the date of summary of demand order
dated 12.09.2019. Referring to Section 62(2) of the BGST/CGST
Act, learned counsel submits that according to this provision,
where the registered person furnishes a valid return within 30 days
of the service of the assessment order under sub-section (1), the
said assessment order shall be deemed to have been withdrawn.
10. Learned counsel submits that despite all these
developments, on 24.08.2023, the Respondent No. 5 made
recovery of demand dated 12.09.2019 (Annexure ‘P2’) which was
deemed to have been withdrawn as per sub-section (2) of Section
62 of the BGST/CGST Act. Learned counsel submits that the
Respondent No. 5 while issuing order for recovery of the amount
from the credit ledger and account of the petitioner, did not take
trouble to verify that the petitioner had already filed the return well
within the stipulated time. The submission is that the recovery is
completely unlawful, it is malafide in law if not in fact and in
order to justify their action, the respondents have jointly
committed an act of perjury by making a false statement before
this Court that the assessment order had been served upon the
petitioner.
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11. Learned counsel further points out that on finding no
solution to the problem and as the petitioner was facing financial
hardships which was adversely affecting his cash flow in business,
the petitioner approached the Appellate Authority on 30.01.2024 in
APL-01 along with the grounds of appeal. The submission is that
the Appellate Authority rejected the appeal on the ground of
limitation in complete disobedience and disregard to the judgment
of this Court in the case of SIS Cash Services Private Limited
vs. Union of India passed on 24.01.2024 in CWJC No. 6514 of
2021 whereby and whereunder this Court has held that an appeal
against an order under Section 73 or 74 has to be filed on or before
31.01.2024 and any appeal filed which is pending before the
Appellate Authority could also be considered as properly filed,
even if there is delay in such filing. This will also apply to an order
passed under Section 62 which provision is not withstanding
anything contrary in Section 73 or Section 74. Under Section 62
too, a mode of assessment is provided.
12. It is submitted that the Appellate Authority rejected
the appeal and thereby the petitioner could not get redressal of its
grievance. Ultimately, the petitioner had to approach this Court in
its extraordinary writ jurisdiction as all the State Tax Authorities
Patna High Court CWJC No.18049 of 2024 dt.06-05-2025
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had together indulged in acting beyond their power, de hors to law
and thereby they caused harassment to the petitioner.
13. Learned counsel for the petitioner has relied upon a
learned Single Judge decision of this Court in the case of K. K.
Pathak vs. Ravi Shankar Prasad & Ors. reported in 2019 (1)
PLJR 1051 wherein the learned Single Judge having noticed that
the petitioner in the said case had suffered harassment due to
misuse of executive power by an officer of the State held that for
such misuse of power if the State is to be saddled with cost, such
cost is required to be recovered from the said officer because of
whose excessive use of power, the State is saddled with cost.
14. It is pointed out that the said judgment of the learned
Single Judge was subject matter of challenge before the Hon’ble
Supreme Court in Special Leave to Appeal (Crl.) Nos.10025-
10031/2018, however, the Hon’ble Supreme Court refused to
interfere with the said judgment. It is submitted that the same
principle is required to be applied in this case also as the State
Respondent Nos. 3, 4, 5 and 6 all seem to be liable for causing
harassment to the petitioner, unlawful deprivation of his money
because of misuse of power on their part.
Patna High Court CWJC No.18049 of 2024 dt.06-05-2025
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Previous Orders of this Court and Submissions on behalf of
the Respondents
15. Before we proceed to consider the submissions of
Mr. Vivek Prasad, learned GP-7 for the State, it would be
appropriate to reproduce the two orders passed by this Court in
course of hearing of this writ application. The first order dated
29.11.2024 was passed by the learned co-ordinate Bench presided
over by the then Hon’ble the Chief Justice. The order dated
29.11.2024 reads as under:-
“The contention of the petitioner is that
despite the demand having been raised as
per the assessment order under Section 62
of the Bihar Goods and Service Tax, Act,
2017 (hereinafter referred to as BGST, Act)
on 12.09.2019, it would stand withdrawn
on 19.09.2019, since the petitioner had
filed Annexure-P3 returns by virtue of the
provisions under sub-section 62(2) of the
BGST, Act.
2. The learned Government Advocate,
however, submits that the petitioner filed a
delayed appeal against Annexure-P3A
order which was dismissed on the ground
of delay.
3. We are of the prima facie opinion that
the petitioner had no reason to file an
appeal, especially, if the return was filed, as
submitted by the petitioner in accordance
with Section 62(2) of the BGST Act.
Considering the fact that the assessment
Patna High Court CWJC No.18049 of 2024 dt.06-05-2025
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raised under Section 62, on 12.09.2019 by
virtue of the return filed under sub-section
62(2) of the BGST Act, the assessment
order and the demand stands withdrawn.
4. The learned Government Advocate
sought for time to find out whether the
return has been filed on the date specified.
5. We direct a counter affidavit to be filed
within a period of two weeks.
6. Post this matter on 09.01.2025.”
16. The second order dated 01.05.2025 is that of this
Court after noticing the averments made in paragraph ’12’ of the
counter affidavit filed on behalf of Respondent No. 4. The order
reads thus:-
“It is evident from the submissions made
at the Bar that the statements made in
paragraph ’12’ of the counter affidavit has
not been substantiated by any annexures,
even though the deponent of the counter
affidavit claims to have enclosed a copy of
ASMT-13 served on the petitioner as
Annexure-1. It transpires that paragraph
’12’ of the counter affidavit is a result of
cut, copy and paste.
2. Let the complete records be produced
at the time of hearing of the application.
3. The matter is passed over.”
17. Pursuant to the order dated 01.05.2025, Mr. Vivek
Prasad, learned GP-7 has produced the records. We have gone
Patna High Court CWJC No.18049 of 2024 dt.06-05-2025
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through the same. On record, this Court finds that there are two e-
mails, (i) dated August 22, 2019 sent at 03:07 PM and (ii) e-mail
dated September 12, 2019 at 04:57 PM. The learned GP-7 is not
sure about what was the attachment to September 12, 2019 e-mail.
18. While it is stated by learned GP-7 that this is the
copy of the assessment order, learned counsel for the petitioner has
contested the service of the assessment order under sub-section (1)
of Section 62.
19. Be that as it may, Mr. Vivek Prasad, learned GP-7
does not contest the submission of learned counsel for the
petitioner that the petitioner had already filed its return on
19.09.2019 in GSTR 3B and paid due tax on it which was within
one month from the date of summary of demand order dated
12.09.2019. The submission at this stage is that the petitioner did
not inform the respondent authorities that he had filed the return
and paid due tax on it within the prescribed period.
20. Learned GP-7 submits that now it is evident that the
petitioner had filed its return and paid the due tax on it well within
a period of one month from the date of summary of the demand
order, therefore, by virtue of sub-section (2) of Section 62, the
assessment order under sub-section (1) of Section 62 shall be
deemed to have been withdrawn. It is for this reason learned GP-7
Patna High Court CWJC No.18049 of 2024 dt.06-05-2025
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has submitted that the impugned orders may be set aside and the
matter may be remanded to the assessing authority.
21. Respondent Nos. 7 and 8 are only proforma
respondents.
Consideration
22. Having heard learned counsel for the petitioner and
learned GP-7 for the State as also upon perusal of the records, we
find that grave injustice has been caused to the petitioner in this
case by a completely unlawful recovery of demand dated
12.09.2019 (Annexure ‘P2). It is an admitted position that the
petitioner had already filed its return in Form GSTR 3B and paid
due tax on it on 19.09.2019 which was well within the statutory
period from the date of the impugned assessment order i.e.
12.09.2019. Sub-section (1) and sub-section (2) of Section 62 of
the CGST/BGST Act, 2017 are as under:-
“62. Assessment of non-filers of returns.-
(1) Notwithstanding anything to the
contrary contained in section 73 or section
74, where a registered person fails to
furnish the return under section 39 or
section 45, even after the service of a
notice under section 46, the proper officer
may proceed to assess the tax liability of
the said person to the best of his judgment
taking into account all the relevant material
which is available or which he has gathered
Patna High Court CWJC No.18049 of 2024 dt.06-05-2025
13/18and issue an assessment order within a
period of five years from the date specified
under section 44 for furnishing of the
annual return for the financial year to
which the tax not paid relates.
(2) Where the registered person furnishes a
valid return within thirty days of the
service of the assessment order under sub-
section (1), the said assessment order shall
be deemed to have been withdrawn but the
liability for payment of interest under sub-
section (1) of section 50 or for payment of
late fee under section 47 shall continue.”
23. On a bare reading of sub-section (2) of Section 62,
there is no iota of doubt that the assessment order issued under
sub-section (1) of Section 62 shall be taken to have been
withdrawn by a legal fiction. Once, the assessment order lost it’s
existence and efficacy in the eye of law, there was no reason for
the Respondent No. 5 to go for recovery of demand dated
12.09.2019 (Annexure ‘P2’).
24. Learned counsel for the petitioner has drawn our
attention towards the various orders passed by the respondent
authorities from time to time. From the order dated
22.12.2020/03.03.2022, it would appear that the petitioner had
submitted an application before the Assistant Commission of State
Tax (in short ‘ACST’). The order is half-written and then it has
Patna High Court CWJC No.18049 of 2024 dt.06-05-2025
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been cut down. We reproduce the order dated
22.12.2020/03/03.2022 hereunder:-
“fnukad 12-09-2019 dks fuxZr DRC 07 ds vkyksd esa
djnkrk }kjk bl gsrq ,d vkosnu fn;k x;k fd mDr
DRC 07 ds vkyksd esa djnkrk }kjk fnukad”
25. There is also an initial at the top and below the
cutting on the order dated 22.12.2020/03.03.2022.
26. It further appears that all of a sudden on 24.08.2023,
the ACST passed the following order:-
“djnkrk ds GST-BO iksVZy ij miyC/k DCR
fjiksVZ ds vuqlkj BGST/CGST Act 2017 dh
/kkjk 73 ds rgr fuxZr ekWx i= la0
ZA100919006325R ds cdk;k jkf”k dk Hkqxrku
vkfnukad ugha fd;k x;k gS vkSj u gh vihy ekuuh;
mPp U;k;ky; esa ekeyk izf’kr ¼nk;j½ fd;k x;kA vr
% jktLo fgr esa fcgkj oLrq ,oa lsokdj vf/kfu;e,
2017 dh kkjk 79 ds rgr fo”ks’k jhfr ls olwyh dh
dk;Zokgh izkjaHk djrs gq, vkfnukad
IP1008230002429 ds rgr djnkrk ds Cash
Ledger ls # 28592/- rFkk Credit Ledger ls #
11187352/- dh olwyh dh tkrh gSA vr% “ks’k jkf”k #
167980/- dh olwyh gsrq DRC-13 vyx ls fuxZr
fd;k tk,xkA”
27. It is evident from the orders available on the record
that there was an application of the assessee in which he had given
some information with reference to DRC 07 but then the complete
order was not written and after writing few lines, the said order
Patna High Court CWJC No.18049 of 2024 dt.06-05-2025
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was cut down/penned down. The application is not on the record.
What happened to the said application is not known.
28. It is evident that the order dated 24.08.2023 was
passed by ACST without recording the fact that the assessee had
already filed its return and paid the due tax within time. The ACST
refers to the GST-BO portal of the assessee but does not refer to
the return filed by the assessee which is available on the same
portal. It is stated that after filing the return, an ‘ARN’ is generated
and the same is in the domain of the authority but by ignoring the
same, the order dated 24.08.2023 has been passed and recovery
has been made.
29. This Court finds much substance in the submission
of the learned counsel for the petitioner. It is evident from the facts
appearing on the records that the Respondent No. 5 has acted in
complete violation of the established procedure of law. The said
authority has misused her power and thereby passed an illegal
order for recovery of the amount. The concerned authority did not
think it just and proper to even issue a notice to the petitioner prior
to passing an order of recovery which she was passing after about
five years from the date of demand.
30. This Court is also disturbed on the manner in which
the appeal preferred before the Appellate Authority has been
Patna High Court CWJC No.18049 of 2024 dt.06-05-2025
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rejected by ignoring the judgment of this Court in the case of SIS
Cash Services (supra). Paragraph ‘8’ of the judgment of the
Hon’ble Division Bench in case of SIS Cash Services (supra) is
quoted hereunder for a ready reference:-
“8. Hence an appeal against an order under
Section 73 or 74 has to be filed on or
before 31.01.2024, and any appeal filed
which is pending before the authority
could also be considered as properly filed,
even if there is delay in such filing. This
will also apply to an order passed under
Section 62 which provision is not
withstanding anything contrary in Section
73 or 74. Under Section 62 too a mode of
assessment is provided.”
31. It is evident that the Appellate Authority has passed
the impugned order as contained in Annexure ‘P5’ after six months
of the passing of the judgment of the High Court but he has
ignored the judgment of this Court and dismissed the appeal. His
act is prima-facie contemptuous.
32. Mr. Vivek Prasad, learned GP-7 has tried to impress
upon this Court that the appellate order has been passed in view of
another judgment of the learned co-ordinate Bench.
33. We are not satisfied with this submission at this
stage.
Patna High Court CWJC No.18049 of 2024 dt.06-05-2025
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34. Learned counsel for the petitioner has prayed for
award of interest and cost.
35. While setting aside the impugned orders as
contained in Annexures ‘P4’ and ‘P5’ of the writ application, the
consequences shall follow. We issue notice to the Assistant
Commissioner of State Tax, Gandhi Maidan Circle, Patna
(Respondent No. 5) who passed the impugned order (Annexure
‘P4’) to show cause as to why this Court should not award interest
and cost which would be recovered from her.
36. We also call upon the Appellate Authority, namely,
the Additional 15-18049Commissioner of State Tax (Appeals),
Patna West Division, Patna (Respondent No. 6) to satisfy this
Court as to why a proceeding for contempt be not initiated against
him for acting in willful disobedience and disregard to the order of
this Court passed in the case of SIS Cash Services (supra).
37. Let both the authorities, namely, Respondent No. 5
and Respondent No. 6 file their response within two weeks from
today.
38. Mr. Vivek Prasad, learned GP-7 undertakes to
inform both the authorities with regard to the order passed by this
Court.
Patna High Court CWJC No.18049 of 2024 dt.06-05-2025
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39. A copy of the order shall be communicated to the
respondents immediately.
40. List this case for further order on 17th June, 2025
under the same heading maintaining its position.
41. The original records are returned to Mr. Vivek
Prasad, learned GP-7.
(Rajeev Ranjan Prasad, J)
(Ashok Kumar Pandey, J)
lekhi/-
AFR/NAFR CAV DATE Uploading Date 07.05.2025 Transmission Date 07.05.2025
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