Rohit Kedia vs. Assistant Commissioner Of State Tax, Lalbazar And Radhabazar Charge And Ors.
Original PDF →Facts
The petitioner, Rohit Kedia, filed a writ petition challenging an order dated January 3, 2025, passed by the Assistant Commissioner of State Tax under Section 107 of the CGST/WBGST Act, 2017. This order dismissed the petitioner's appeal against an original order dated March 28, 2024, passed under Section 73 of the Act for the tax period April 2018-March 2019. The appeal was dismissed on grounds of limitation, specifically a delay of 47 days. The petitioner argued that the delay was due to the show cause notice being uploaded under 'additional notices' on the portal, his limited computer knowledge, and a family member's illness. He also noted the absence of a constituted appellate tribunal, forcing him to approach the High Court. The State conceded that the appellate tribunal was not yet constituted but maintained the original order was not irregular.
Held
The Court held that while the petitioner has an alternative remedy of appeal, the non-constitution of the appellate tribunal compelled him to approach the High Court. The Court noted that the original order for the tax period April 2018-March 2019 was based on an unresponded show cause notice, and the petitioner's explanation for the delay in filing the appeal before the appellate authority was not adequately considered. Given the marginal delay and the unavailability of the appellate tribunal, the Court found it more convenient to have the factual issues decided by the appellate authority first, as they have direct access to the electronic records. Therefore, the Court set aside the appellate authority's order dated January 3, 2025, and remanded the matter back to the appellate authority for adjudication on merits. The appellate authority was directed to hear and dispose of the appeal expeditiously, preferably within six weeks. Additionally, considering the petitioner had already made the pre-deposit and his bank account was attached, the Court directed that if the petitioner applies for release of the bank account, the appellate authority shall decide such application within one week of filing, before proceeding with the appeal on merits. The attachment was deemed impermissible to continue if it was restricted to the demand based on the set-aside appellate order.
Key Issues
1. Whether the appellate authority erred in dismissing the petitioner's appeal solely on the ground of limitation, without adequately considering the explanation for the delay, thereby violating principles of natural justice, particularly in light of the non-constitution of the appellate tribunal? (Section 107, CGST/WBGST Act, 2017) Petitioner's Arguments: - The appellate tribunal is not yet constituted, leaving the petitioner with no alternative statutory remedy, thus justifying the writ petition. - The delay in filing the appeal was due to specific circumstances: the show cause notice being uploaded under 'additional notices' on the portal, the petitioner's limited computer literacy, and a family medical emergency. - The appellate authority failed to properly consider this explanation before dismissing the appeal on limitation. Revenue/State's Arguments: - The appellate tribunal is yet to be constituted. - The order under challenge does not suffer from any irregularity.
Sections Cited
Section 107, Section 73
AI-generated summary — verify with the full judgment below
2025 Item Nos. A 17 Saswata
WPA 1461 of 2025 Rohit Kedia versus Assistant Commissioner of State Tax, Lalbazar and Radhabazar Charge & Ors. Mr. Sandip Choraria Mr. Rishav Manna Mr. Akash Chakraborty …For the petitioner Mr. Anirban Ray, Ld. GP Mr. Md. T.M.Siddiqui, Sr. Adv. & Ld. AGP Mr. N.Chatterjee Mr. T. Chakraborty Mr. S. Sanyal …For the State
Challenging the order dated 3rd January 2025 passed under Section 107 of the CGST / WBGST Act, 2017 (hereinafter referred to as the “said Act”) the instant writ petition has been filed.
It appears that the original order under Section 73 of the said Act was passed on 28th March 2024 in respect of the tax period April 2018-March 2019. The said order forms subject matter of challenge in the appeal. The Form GST APL – 02 demonstrates that the petitioner had deposited the pre deposit of Rs.58,903/- as is required for maintaining such appeal. It is submitted that there was a delay of 47 days in preferring the appeal. Although, an explanation was given, the appellate authority without appropriately considering such explanation, had dismissed
the appeal on the ground of limitation.
Mr. Choraria, learned advocate appearing on behalf of the petitioner submits that although the petitioner has an alternative remedy in the form of appeal before the appellate tribunal, however, since the appellate tribunal is yet to be constituted the petitioner has been compelled to approach this Court. He would submit that since the show cause notice was uploaded in the portal under the head additional notices and the petitioner having little knowledge
2 about computer operations, and also further due to illness of one of the family members, was unable to give his response.
Mr. Siddiqui, learned senior advocate and Additional Government Pleader appearing on behalf of the State submits that the appellate tribunal is yet to be constituted. According to him the order does not suffer from any irregularity.
Heard the learned advocates appearing on behalf of the respective parties and considered the materials on record.
It would transpire that the original order passed by the proper officer on 28th March 2024 for the tax period from 1st April 2018 to 31st March 2019 was based on a show cause which was not responded to by the petitioner. The explanation given by the petitioner and the challenge to such order is yet to be tested out as the matter was also not adjudicated by the appellate authority since the same was barred by limitation. Today, the petitioner has approached this Court insisting that the petitioner has a statutory remedy. The petitioner has been prevented from availing the same by reason of the appellate tribunal not being constituted. Having regard thereto, ordinarily this Court would be required to hear out this matter on merits, however, since the matter concerns computation of tax, if the matter is heard by the appellate authority at the first instance, it will be far more convenient to decide the factual issues considering the fact that the records are available on the portal which can be directly assessed by the appellate authority on the contrary for this Court to decide the matter
3 the entire records which are only available electronically on the portal, would be required to be downloaded for being produced.
Having regard thereto, I am of the view that in the fitness of things and considering the marginal delay, it would be proper to remand the matter back to the appellate authority for adjudication on merit. While setting aside the order passed by the appellate authority dated 3rd January 2025, I direct the appellate authority to hear out and dispose of the appeal on merit as expeditiously as possible preferably within a period of 6 weeks from date.
Since, the petitioner at this stage would submit that the petitioner’s bank account has been attached, considering the fact that the petitioner has already made the pre deposit, I am of the view that such attachment cannot be permitted to continue. However, considering the fact that the matter has already been remanded back, I am of the view that in the event, the petitioner makes an application before the appellate authority, the appellate authority shall, having regard to the facts of this case and the observations made hereinabove, and if it is found that the attachment is restricted to the demand based on appellate order dated 3rd January, 2025, shall hear out and decide such application for release of the petitioner’s bank account within a period of one week from filing of such application. The above application for release of the bank account from attachment must be decided first before proceeding to hear out the appeal.
With the above directions and observations, the writ petition being WPA 1461 of 2025 is accordingly disposed of.
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All parties shall act on the basis of the server copy of this order duly downloaded from this Court’s official website. (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.