M/S. Cart Roadwings Jv And Anr. vs. The Additional Commissioner, CGST And Cx And Ors.
Original PDF →Facts
The petitioners, M/s. Cart Roadwings JV & Anr., filed a writ petition challenging an order passed under Section 74 of the WBGST/CGST Act, 2017, dated January 8, 2025, pertaining to the tax period July 2017 to March 2021. The petitioners contended that their employee responsible for handling the matter was suffering from cancer, which prevented them from filing a response to the show-cause notice. They also claimed that they were not granted an appropriate opportunity of hearing. The respondents, represented by the Additional Commissioner, CGST and CX, Kolkata South Commissionerate & Ors., argued that the petitioners had an alternative remedy of appeal.
Held
The Court acknowledged the petitioners' contention that their employee's illness prevented them from filing a response to the show-cause notice, while also noting that the show-cause notice was issued on August 4, 2024, and the final order was passed over five months later, with an opportunity for hearing having been provided. Despite the revenue's argument of an alternative remedy, the Court, considering the pendency of the writ petition and the petitioners' claim of being prevented from responding due to health issues, deemed it prudent to permit the petitioners to approach the appellate authority. The Court directed that the petitioners could file an appeal within four weeks from the date of the order. Upon filing, the appellate authority was instructed to hear the appeal on merit, treating the appeal petition as the petitioners' first statement of defence, and to provide an opportunity of hearing, deciding the appeal in accordance with law, subject to compliance with statutory formalities. The Court explicitly did not go into the correctness of the allegations made in the petition regarding the employee's health.
Key Issues
1. Whether the petitioners were denied a proper opportunity of hearing and/or were prevented from filing a response to the show-cause notice due to the illness of their employee, thereby vitiating the order passed under Section 74 of the WBGST/CGST Act, 2017? The petitioners argued that due to the severe illness of their employee, they could not take proper steps to file a response to the show-cause notice and were not granted an appropriate opportunity of hearing. They relied on the principle that a fair hearing is a fundamental right. The revenue authorities contended that the petitioners had an alternative remedy in the form of an appeal under Section 107 of the Act and therefore, the writ petition should not be entertained. They pointed out that the show-cause notice was issued on August 4, 2024, and the final order was passed more than five months later, and an opportunity of hearing was afforded, which the petitioners did not avail.
Sections Cited
Section 74, Section 107
AI-generated summary — verify with the full judgment below
WPA 3032 OF 2025 05.05.2025 M/s. Cart Roadwings JV & Anr. Sl no. 36 - Vs – Ct no. 5 The Additional Commissioner, CGST and CX, Kolkata South Commissionerate & Ors. P.M.
Mr. Ankit Kanodia, Ms. Megha Agarwal, Ms. Tulika Roy, Mr. Piyush Khaitan … for the petitioners. Mr. Samir Kumar Datta, Mr. Jasojit Mukherjee …. For Union of India Mr. Uday Shankar Bhattacharya, Mr. Tapan Bhanja … for CGST authorities.
The present writ petition has been filed, inter alia, challenging the order under Section 74 of the WBGST/CGST Act 2017 dated 8th January, 2025 for the tax period July 2017 to March 2021. 2. Mr. Kanodia, learned advocate appearing on behalf of the petitioners submit that since the petitioners’ employee who was looking after the matter on behalf of the petitioner no.1 was suffering from Cancer, proper steps could not be taken by the petitioners to file the response to the show-cause.
It is also the petitioners’ case that no appropriate opportunity of hearing was granted to the petitioners.
Mr. Bhattacharya, learned advocate appearing on behalf of the respondents submits that the petitioners have an alternative remedy in the form of appeal and as such no interference is called for.
Heard the learned advocates appearing on behalf of the respective parties and considered the materials on record. Admittedly in this case an order under Section 74 of the said Act has been passed on 8th January, 2025. Although, the petitioners would contend that the person who was looking after the matter had fallen sick and by reasons of the aforesaid, no response could be filed, I however, notice that in this case the show-cause was duly issued on 4th August, 2024 and the final order was passed more than five months thereafter. From the order impugned it transpires that the petitioners had also been afforded opportunity of hearing, which the petitioners did not take. 2
However, taking into consideration the fact the petitioners did not respond to show- cause and the contention of the petitioner no.1 is that it had been prevented from filing such response by reasons of health issue of its employee, though without going into the correctness of the allegations made in the petition, in my view, at this stage it could be prudent to permit the petitioners to approach the appellate authority under Section 107 of the said Act.
I may notice that the order impugned has been passed on 8th January, 2025 and the writ petition has been filed on 7th February, 2025. Since then the writ petition had remained pending till today. Having regard to the pendency of the writ petition and the refusal of this Court to entertain the same on the ground of alternative remedy, I am of the view that the petitioners cannot be rendered remediless. In view thereof, I permit the petitioners to approach the appellate authority within a period of four weeks from date. In the event, the appeal is filed within the aforesaid period, the 3
appellate authority shall hear out the appeal on merit.
It is made clear that since the petitioners claim that it had been prevented from filing any response by reasons of its employee being sick and undergoing medical treatment, the appellate authority shall treat the appeal petition as a first statement of defence of the petitioners. Appellate authority shall also provide opportunity of hearing to the petitioners and decide the appeal on merit in accordance with law subject to the petitioners complying with all other statutory formalities.
With this observation and direction this writ petition being WPA 3032 of 2025 is disposed of.
Urgent Photostat certified copy be made available to the parties, if applied for, upon usual formalities.
(Raja Basu Chowdhury, J.) 4
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.