Sudarshon Sarker vs. Union Of INDIA And Ors.
Original PDF →Facts
The petitioner, Sudarshan Sarker, a 73-year-old individual, filed a writ petition challenging an ex parte order dated December 31, 2024, passed by the appellate authority under Section 107 of the WBGST/CGST Act, 2017. The petitioner argued that the appellate authority failed to provide a further opportunity for personal hearing, despite his age, and that the order was non-speaking and in non-compliance with Section 107(12) of the Act. The CGST authorities contended that the petitioner was afforded repeated opportunities to appear but failed to avail them, and thus, could not claim a violation of natural justice. The petitioner countered that his tax consultant's non-appearance was the reason for his absence.
Held
The Court held that while the petitioner's argument regarding his age and reliance on a tax consultant might not be entirely justified, the order passed by the appellate authority was unsustainable. The Court found the impugned order to be unreasoned and not in compliance with Section 107(12) of the WBGST/CGST Act, 2017. It noted that there appeared to be no reasons provided for rejecting the appeal on merits. Consequently, the Court set aside the order dated December 31, 2024, and remanded the matter back to the appellate authority for fresh adjudication on merit. The ratio decidendi is that an appellate order under Section 107 of the GST Act must be a speaking order, adjudicating the points raised, and failure to do so, even if the appellant is absent, warrants setting aside and remand.
Key Issues
1. Whether the appellate authority erred in deciding the appeal ex parte without providing a further opportunity for personal hearing to the petitioner, particularly considering his age and reliance on a tax consultant? (Question of mixed law and fact, turning on principles of natural justice and procedural fairness). 2. Whether the appellate authority's order dated December 31, 2024, is a non-speaking order and in non-compliance with the mandate of Section 107(12) of the WBGST/CGST Act, 2017, which requires adjudication of points raised in the appeal? (Question of law, turning on Section 107(12) of the said Act). Petitioner's arguments: The petitioner contended that the appellate authority should have granted a further personal hearing, especially given his age. He also argued that the appellate authority was obligated under Section 107(12) to decide the appeal on its merits, irrespective of his appearance, and that the impugned order was non-speaking and thus non-compliant. Reliance was placed on the judgment in Madhusudan Banik, Proprietor of M.M.Pharmaceuticals versus State of West Bengal & ors. Revenue/State's arguments: The CGST authorities argued that the petitioner was given multiple opportunities to appear and failed to avail them, thus forfeiting any claim of natural justice violation. They asserted that the appellate authority rightly rejected the appeal and no interference was warranted.
Sections Cited
Section 107, Section 107(12)
AI-generated summary — verify with the full judgment below
2025 Item No A 19 Saswata
WPA 2754 of 2025 Sudarshan Sarker versus The Union of India & Ors. Mr. Himangshu Kumar Ray Ms. Shiwani Shaw Mr. Animitra Roy Mr. Gaurav Chakraborty …For the petitioner Mr. Anirban Ray, Ld. GP Mr. Md. T.M.Siddiqui, Ld. AGP Mr. Nilotpal Chatterjee Mr. T. Chakraborty Mr. S. Sanyal …For the State Ms. Manasi Mukherjee Mr. Bijitesh Mukherjee …For the CGST
Affidavit of service filed in Court today is retained with the record.
The present writ petition has been filed, inter alia, challenging the order dated 31st December 2024 passed by the appellate authority under Section 107 of the WBGST / CGST Act, 2017 (hereinafter referred to as the “said Act”).
Mr. Ray, learned advocate appearing for the petitioner would submit that the petitioner seeks to assail the aforesaid order on two fold grounds. Primarily, the petitioner submits that the appellate authority had decided the matter ex parte without providing further opportunity of personal hearing to the petitioner to present his case, especially since he is a 73 year old person.
Independent of the above, he submits that having regard to the provisions contained under Section 107(12) of the said Act, the appellate authority was under an obligation to decide the points raised and adjudicate the appeal independent of the fact whether petitioner had appeared before the appellate authority. According to him, the decision rendered by the appellate authority is a non speaking order and has been issued in non-compliance of the provisions of Section 107(12) of the said Act. In support
2 of his aforesaid contention, he has placed reliance on the judgment delivered by the Hon’ble Division Bench of this Court presided over by the Hon’ble the Chief Justice in the case of Madhusudan Banik, Proprietor of M.M.Pharmaceuticals versus State of West Bengal & ors., reported in 2025 (4) TMI 94- Calcutta High Court.
Ms. Mukherjee, learned advocate enters appearance on behalf of the CGST authorities. She would, however, submit that in the instant case the petitioner was afforded with repeated opportunities to appear. The petitioner did not avail such opportunities. Having thus, failed to take benefit of personal hearing, the petitioner cannot complain of failure of natural justice. According to her, the appellate authority had rightly rejected the appeal and no interference is called for.
Heard the learned advocates appearing for the respective parties and considered the materials on record.
Admittedly, in this case it would transpire that the petitioner was afforded with repeated opportunities of personal hearing. The petitioner did not avail the same. Mr. Ray would however, contend that the petitioner being an aged person and dependent upon tax consultant, had no fault in not availing the benefit of personal appearance since, the tax consultant who was entrusted with the duty to represent him did not appear.
Although, the aforesaid ground does not appear to be justified, however, taking into consideration the fact that the order impugned is an unreasoned order and does not comply with the provisions of Section 107(12) of the said Act and since there appears to be no reasons for rejecting
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the appeal on merit, I am of the view that the aforesaid order passed by the appellate authority cannot be sustained. Accordingly, while setting aside the order dated 31st December 2024 passed by the appellate authority, I remand the matter back to the appellate authority for fresh adjudication on merit.
With the above observation and direction, the writ petition is disposed of.
Urgent Photostat certified copy of this order, if applied for, be given to the parties upon completion of 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.