Shaikh Aslam Ali @ Sk Ali Aslam vs. Deputy Commissioner Of State Tax, Diamond Harbour Charges And Ors
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The petitioner, Shaikh Aslam Ali alias Sk Ali Aslam, filed a writ petition challenging an order dated November 16, 2022, passed by the proper officer under Section 74 of the WB GST/CGST Act, 2017. The order pertains to the tax period April 2021 to January 2022. The petitioner's bank account was attached, and a sum of Rs. 2,19,35,098/- was recovered. The petitioner admits that the time to prefer an appeal has expired, offering explanations for the delay which the Court found may not be entirely adequate. No attempt was made to avail the statutory appellate remedy, even after the bank account attachment.
Held
The Court held that while the writ petition is not maintainable due to the availability of an alternative appellate remedy and the petitioner's failure to avail it, the petitioner should not be left remediless. The Court acknowledged that the determination made by the proper officer ought to be tested by the appellate authority, especially given that the appellate tribunal is yet to be constituted. Therefore, the Court directed that if the petitioner files an appeal within four weeks from the date of the order, the appellate authority shall hear the appeal on merits. This would be subject to the condition that either a sum exceeding 20% of the amount in dispute has already been recovered, or the petitioner seeks a pre-deposit of 10% of the tax in dispute. The Court also directed the petitioner to pay a cost of Rs. 50,000/- to the High Court Legal Services Committee. The petitioner is at liberty to seek the release of the attachment order from the appellate authority upon payment of costs and fulfilling the pre-deposit/recovery condition.
Key Issues
1. Whether the writ petition is maintainable in light of the availability of an alternative statutory remedy of appeal under Section 74 of the WB GST/CGST Act, 2017, and the petitioner's failure to avail it within the prescribed time limit. 2. Whether the petitioner should be granted relief despite the delay in filing an appeal and the recovery of a substantial portion of the disputed tax amount. Petitioner's arguments: The petitioner contended that a significant amount (Rs. 2,19,35,098/-) has been recovered from their bank account pursuant to the impugned order. They also highlighted that the appellate tribunal is yet to be constituted, suggesting a procedural impediment to accessing the appellate remedy. Revenue/State's arguments: The judgment records no specific arguments from the State respondents regarding the maintainability of the writ petition or the petitioner's delay in filing an appeal. However, their actions, such as the recovery of tax and attachment of the bank account, indicate their stance in enforcing the order.
Sections Cited
Section 74
AI-generated summary — verify with the full judgment below
2 11.09.2025 sb
Ct.
IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURI ICTION APPELLATE SIDE Shaikh Aslam Ali alias Sk Ali Aslam Versus Deputy Commissioner of State Tax, Diamond Harbour Charge & Ors.
Mr. Avra Mazumder
Mr. Suman Bhowmik
Ms. Alisha Das
Ms. Elina Dey
Ms. Sreeja Mukherjee
… For the petitioner.
Mr. Tanoy Chakraborty
Mr. S. Sanyal
… For the State
The instant writ petition has been filed, inter alia, challenging the order dated 16th November, 2022, passed by the proper officer under Section 74 of the WBGST/CGST Act, 2017 (hereinafter referred to as the “said Act”).
Having heard the learned advocates appearing for the respective parties I find that admittedly, the time to prefer an appeal has expired. Though certain explanation for the delay has been offered, such explanation, in my view, may not be entirely adequate.
Further, I find that an appellate remedy has been provided from an order passed under Section 74 of the said Act. No attempt has been made by the petitioner to avail such appellate remedy. Even after the petitioner’s bank account was attached, no steps were taken to prefer an appeal. It is the petitioner’s contention that a sum of Rs.2,19,35,098/- has already been recovered from the petitioner’s bank account against the demand raised by the respondents in furtherance to the order passed under Section 74 of the said Act dated 16th November, 2022 in respect of the tax period April, 2021 to January, 2022. 4. In the light of the above, in my view, though there is no scope to entertain the writ petition, however, at the same time the petitioner should not be rendered remediless and the determination already made ought to be tested, by the appellate authority, especially when at present the appellate tribunal is yet to be constituted
Thus, in the event, the petitioner prefers an appeal within a period of four weeks from date with the appellate authority, the appellate authority upon ascertaining that a sum in excess of 20 per cent of the amount in dispute has already been recovered from the petitioner or alternatively by seeking for a pre-deposit of 10 percent of the tax in dispute, shall hear out the appeal on merits in accordance with law.
Since, the petitioner has approached this Court belatedly, it shall also be prudent to direct the petitioner to make payment of cost of Rs.50,000/- to be paid by the petitioner to the High Court Legal Services Committee.
It is made clear that upon payments of costs as aforesaid the petitioner shall be at liberty to seek release of the order of attachment from the appellate authority, provided an amount in excess of 10 percent of the Tax in dispute is either paid or recovered and the appeal is filed within the time provided herein.
With the above observations and directions, the writ petition is disposed of.
Urgent Photostat certified copy of this order, if applied for be given to the parties upon compliance with the requisite formalities.
(Raja Basu Chowdhury, J.)
Reproduced from the public record of the Calcutta High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.