Basanta Kumar Shaw vs. The Assistant Commissioner Of Revenue And Ors
Held
The Court held that the writ petition should be permitted to be dismissed as withdrawn. The reasoning was based on the submission made by the petitioner's counsel and the fact that the appellate tribunal has now been constituted and is functional. The Court granted the petitioner liberty to file the appeal before the appellate tribunal within a period of 4 weeks from the date of the order. The ratio decidendi is that a writ petition filed due to the non-availability of a statutory appellate remedy can be withdrawn and the petitioner allowed to pursue the statutory remedy once it becomes available, provided the delay in filing the appeal is condoned or a specific period is granted for filing.
Facts
The petitioner, Basanta Kumar Shaw, Proprietor of M/s NMD Engineering Works, filed a writ petition challenging orders passed under Section 107 of the WBGST/CGST Act, 2017. At the time of filing, the appellate tribunal had not yet been constituted. The petitioner now wishes to withdraw the writ petition because the appellate tribunal has since been constituted and is functional. The respondent is the Assistant Commissioner of Revenue, Commercial Taxes & State Tax, Tamluk Charge.
Key Issues
1. Whether the petitioner should be permitted to withdraw the writ petition, given the subsequent constitution and functionality of the appellate tribunal under Section 107 of the WBGST/CGST Act, 2017. Petitioner's argument: The petitioner argued that the writ petition was filed when the appellate tribunal was not functional. Now that the tribunal is functional, the petitioner wishes to pursue the appeal before it and therefore seeks withdrawal of the writ petition. The petitioner relies on the principle that a litigant should be allowed to pursue the appropriate statutory remedy when it becomes available. Revenue's argument: The respondent, represented by Ms. Manasi Mukherjee, did not record any specific argument against the withdrawal of the writ petition. However, the Court noted the submission made by the petitioner's counsel.
Sections Cited
Section 107
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2026 Ct. 3 Item No. AD 3 Saswata
WPA 28785 of 2023
Basanta Kumar Shaw, Proprietor of M/s NMD Engineering Works Versus The Assistant Commissioner of Revenue, Commercial Taxes & State Tax, Tamluk Charge & Ors. Mr. Ankit Kanodia Ms. Megha Agarwal Ms. Tulika Roy Mr. Piyush Khaitan Mr. S. Ojha …For the petitioner Ms. Manasi Mukherjee Mr. Bijitesh Mukherjee …For the respondent no. 1
Learned advocate appearing for the petitioner would submit that challenging the orders passed under Section 107 of the WBGST / CGST Act, 2017 though the instant writ petition has been filed, at the relevant point of time the appellate tribunal was yet to be constituted. She submits that since the appellate tribunal has now been constituted and has become functional, the petitioner is now interested to proceed with the matter before the tribunal. Accordingly, she prays for withdrawal of the writ petition.
Ms. Mukherjee, learned advocate appears for the respondent no. 1. 3. Having regard to the submission made in Court and noting that the appellate tribunal has already been constituted, I am of the view that the writ petition should be permitted to be dismissed as wi
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