Biplab Mondal vs. Additional Commissioner, CGST And Central Excise, Siliguri Commissionerate And Ors.
Original PDF →Facts
The petitioner, Biplab Mondal, filed a writ petition challenging an order dated May 31, 2024, passed under Section 73(2) of the Finance Act, 1994, read with Section 174(2) of the CGST Act, 2017. The petitioner contended that the show-cause cum demand notice dated October 20, 2021, improperly invoked the proviso to Section 73(1) of the Finance Act, 1994, by using an extended period without justification. The petitioner argued that the work orders for construction services, including public utility projects like an indoor stadium and road improvements, entitled them to mega exemption benefits, which were disregarded in the impugned order. The revenue authority argued that the petitioner had an alternative efficacious remedy of statutory appeal.
Held
The Court held that while the petitioner raised arguable points regarding the invocation of the proviso to Section 73(1) and entitlement to mega exemption, the existence of an alternative statutory remedy under Section 85 of the Finance Act, 1994, precluded the High Court from entertaining the writ petition. The Court noted that a final order under Section 73(2) had already been passed. However, to prevent the petitioner from being remediless, the Court directed that if the petitioner files an appeal along with a condonation of delay application before the Appellate Authority, the Appellate Authority shall consider condoning the delay, taking into account the pendency of the writ petition and the observations made by the High Court, and then dispose of the appeal on merits after compliance with other formalities. The issue of whether the proviso was correctly invoked or if the petitioner was entitled to mega exemption was not decided on merits by the High Court.
Key Issues
1. Whether the proviso to Section 73(1) of the Finance Act, 1994, was correctly invoked by the revenue authority, considering the nature of the services provided by the petitioner and the availability of mega exemption notification benefits? (Question of law and fact). The petitioner argued that the proviso was wrongly invoked as there was no justification for using the extended period, and that the services rendered qualified for mega exemption. The revenue authority contended that the petitioner had an alternative statutory remedy of appeal, and therefore, the writ petition should not be entertained.
Sections Cited
Section 73(2), Section 174(2), Section 73(1), Section 85
AI-generated summary — verify with the full judgment below
05.05.2025 (M/L) Court No.05. (Pritam) WPA 2120 of 2025
Biplab Mondal.
-Vs.-
Additional Commisioner, CGST & Central Excise, Siliguri Commissionerate & Ors.
Mr. Souradeep Majumdar,
...for the petitioner.
Mr. Bhaskar Prosad Banerjee,
Mr. Tapan Bhanja
....for the respondent/CGST Authority.
Mr. Manasi Mukherjee,
Mr. Aishwarya Rajyashree
....for the UoI/respondent no.3. 1. Affidavit-of-service filed in court today be taken on record.
Challenging an order dated May 31, 2024 passed under Section 73(2) of the Finance Act, 1994 read with Section 174(2) of the CGST Act, 2017 (hereinafter referred to as the “said Act”), the instant writ petition has been filed.
Mr. Majumdar, learned advocate representing the petitioner would submit that the show-cause cum demand notice dated October 20, 2021 was issued by invoking the proviso to Section 73(1) of the Finance Act, 1994. He would submit that there was no scope to invoke the extended period, notwithstanding the aforesaid, the same had been done. According to him, the work-orders awarded for construction were for public utility service, including construction of indoor stadium, improvement
2 of road by providing, divider and footpath railing, reconstruction of road side boundary wall, improvement and widening and strengthening of ferry approach road and other allied services. He would submit that the petitioner is entitled to the benefit of the mega exemption notification. Unfortunately by disregarding the same the impugned order has been passed, which cannot be sustained.
Mr. Banerjee, learned advocate appearing on behalf of the respondents would submit that the petitioner has an alternative efficacious remedy in the form of a statutory appeal and as such this Hon’ble Court may be pleased not to entertain the present writ petition.
Having heard the learned advocates appearing for the respective parties and noting that a final order under Section 73(2) of the Finance Act, 1994, read with Section 174(2)of the said Act has already been passed and noting that the petitioner has an alternative remedy under Section 85 of the Finance Act, 1994, there is no scope to entertain the present writ petition.
Having regard to the fact that the instant writ petition is being dismissed on the ground of alternative remedy and noting that the present writ petition was pending before this Court for quite some time, I am of the view that the petitioner should not be rendered remediless.
In view thereof in the event, the petitioner approaches the Appellate Authority by filing an appropriate appeal along
3 with an application for condonation of delay, the Appellate Authority having regard to the pendency of the proceeding before this Court and the observations made herein, upon condoning the delay, shall heard out and dispose of the appeal subject to compliance of other formalities by the petitioner.
With the aforesaid observation and direction, instant writ petition is disposed of without any order as to costs.
Urgent Photostat certified copy of this order may be supplied to the parties upon all formalities, if applied for.
(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.