Nanda Kishor Saha Alias Nand Kishore Saha vs. The Union Of INDIA And Ors.
Original PDF →Facts
The petitioner, Nanda Kishor Saha, challenged an order dated December 14, 2023, passed under Section 73(9) of the WBGST/CGST Act, 2017, for the tax period July 2017 to March 2018. The petitioner had responded to the show cause notice on October 13, 2023, but this response was filed beyond the time stipulated in the notice and was consequently not considered by the proper officer. Aggrieved, the petitioner filed an appeal under Section 107 of the Act. This appeal was rejected due to a delay of 128 days, despite the petitioner providing an explanation for the delay. The petitioner then filed the present writ petition challenging these orders.
Held
The Court held that the petitioner's response to the show cause notice, though filed beyond the time provided in the notice, was submitted prior to the disposal of the proceedings and therefore ought to have been considered by the proper officer. The Court found that the proper officer's failure to consider this response was an error. Consequently, the Court set aside the order passed by the proper officer dated December 14, 2023, and the order passed by the appellate authority on May 25, 2025. The matter was remanded back to the proper officer for re-adjudication on merits. The Court directed the proper officer to hear the petitioner and dispose of the proceedings in accordance with the law. As a sequel, the consequential demand raised by the respondents was quashed. The issue of the delay in preferring the appeal was implicitly addressed by remanding the matter for fresh adjudication, implying that the delay and the explanation for it would be considered in the re-adjudication process.
Key Issues
1. Whether the proper officer erred in not considering the petitioner's response to the show cause notice, filed on October 13, 2023, when passing the order dated December 14, 2023, under Section 73(9) of the said Act, despite the response being filed prior to the disposal of the proceedings? 2. Whether the appellate authority erred in rejecting the petitioner's appeal on the ground of limitation, without appropriately considering the explanation for the delay in preferring the appeal? Petitioner's arguments: The petitioner contended that although their response to the show cause notice was filed beyond the stipulated time, it was submitted prior to the disposal of the proceedings and ought to have been considered by the proper officer. Furthermore, the petitioner argued that their explanation for the delay in filing the appeal was not appropriately considered by the appellate authority, leading to its rejection. Revenue's arguments: The judgment records submissions made by Mr. Bhanja for the respondents (CGST authorities). However, the specific arguments made by the revenue are not detailed in the provided text.
Sections Cited
Section 73(9), Section 107
AI-generated summary — verify with the full judgment below
Item No.16 16.07.2025 Court. No. 5 GB W.P.A. 13982 of 2025
Nanda Kishor Saha @ Nand Kishore Saha Vs. The Union of India & Ors.
Mr. Himangshu Kumar Roy, Ms. Shivani Shaw, Mr. A. Roy, Mr. Gourav Chakraborty … for the Petitioner. Mr. Tapan Bhanja … for the CGST.
Affidavit-of-service filed in Court is taken on record.
Although none appears on behalf of the respondents, since Mr. Bhanja, learned advocate who usually appears on behalf of the CGST authorities is present in Court, he is directed to appear in the aforesaid matter. Let his appointment be regularized.
Challenging an order dated December 14, 2023 passed under Section 73(9) of the WBGST/CGST Act, 2017 (hereinafter referred to as the ‘said Act’) for the tax period July 2017 to March 2018, an appeal was filed under Section 107 of the said Act. The appeal was however rejected on the ground of limitation.
Mr. Roy, learned advocate appears in support of the writ petition. He would submit that although, the petitioner had responded to the show cause and had filed a response on October 13, 2023 to the same, since the response was beyond the time provided for in the show-cause notice the same was not considered by the proper officer while disposing of the proceeding by passing an order dated December 14, 2023. Being aggrieved the petitioner has filed an appeal.
In the process as aforesaid, there was a delay of 128 days in preferring the appeal. Although, Mr. Roy would submit that the petitioner had afforded an explanation, however, without appropriately considering such explanation the appeal had been rejected.
Considered the submissions made by Mr. Bhanja, learned advocate for the respondents.
Having heard the learned advocates appearing for the respective parties, I find that the petitioner is primarily aggrieved with regard to the non- consideration of his response to the show cause by the proper officer while passing the order dated December 14, 2023 under Section 73(9) of the said Act.
I find that thought the response filed by the petitioner to the show-cause was beyond the time provided for in the show-cause, the same was prior to the disposal of the proceedings.
Having regard to the above, I am of the view that the petitioner’s response ought to have been considered by the proper officer since the same was filed prior to the disposal of the proceedings. In view thereof, while setting aside the order passed by the proper officer dated December 14, 2023 and the order passed by the appellate authority on May 25, 2025, I remand the matter back to the proper officer for re-adjudication on merits.
It is expected that the proper officer shall hear out and dispose of the proceeding upon giving opportunity of hearing to the petitioner of being heard and shall decide the proceeding in accordance with law. As a sequel thereto, the consequential demand raised by the respondents in form DRC-7 dated December 19, 2023 and APL 04 dated May 22, 2025/ June 3, 20254 stands quashed.
Accordingly, the instant writ petition being WPA 13982 of 2025 is disposed of.
(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.