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TMI Blog2025 (5) TMI 731X X X X Extracts X X X X X X X X Extracts X X X X ..... or the petitioner and Mr. Vivek Prasad, learned Government Pleader No.- 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bearing Reference No.- ZA100919006325R dated 12.09.2019 (as contained in Annexure-P-2) which was deemed to have been withdrawn as per the Provision of Section 62(2) BGST/CGST Act 2017 (Annexure- P3A, 3B) as the Petitioner had already filed GSTR 3B for the month July 2019 on 19.9.2019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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 email. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 through the same. On record, this Court finds that there are two emails, (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 ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d person furnishes a valid return within thirty days of the service of the assessment order under subsection (1), the said assessment order shall be deemed to have been withdrawn but the liability for payment of interest under subsection (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 been cut down. We reproduce the order dated 22.12.2020/03/03.2022 hereunder:- "दिनांक ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2358;ेष रीति से वसूली की कार्यवाही प्रारंभ करते हुए आदिनांक IP1008230002429 के तहत करदाता के Cash Ledger से रु 28592/- तथा Credit Ledger से रु 11187352/- की वसूली की जाती है। अतः शेष राशि रु 167980/- की वसूली हेतु DRC-13 अलग से निर्गत किया जाएगा।" 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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. 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 15-18049 Commissioner 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, lea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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