Basant Kumar Upadhyay vs. State Of West Bengal And Ors.
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The petitioner, Basant Kumar Upadhyay, filed a writ petition challenging an order dated 23.07.2024, which rejected his appeal under Section 107 of the WBGST/CGST Act, 2017. This appeal arose from an order passed under Section 73 of the same Act, leading to a demand raised in Form GST-DRC-07 dated 22.11.2023. The petitioner stated that the writ petition was filed because the appellate tribunal, to which a further appeal would lie, had not yet been constituted. The petitioner sought admission of the writ petition and a stay on the demand. The State acknowledged the non-constitution of the tribunal and suggested the writ petition be heard on usual terms, subject to pre-deposit compliance, or alternatively, that the matter be heard by the High Court or remanded to the appellate authority, given the appeal was dismissed on limitation without merit adjudication.
Held
The Court held that the petitioner's appeal under Section 107 of the WBGST/CGST Act, 2017, was rejected on the ground of limitation without any adjudication on merits. Considering the fact that the appellate tribunal under Section 109 of the said Act is yet to be constituted, the Court found it appropriate to remand the matter back to the appellate authority for a decision on merits. The Court reasoned that the appellate authority would be better equipped to decide the factual issues, especially since the petitioner had duly made the pre-deposit. Accordingly, the order passed by the appellate authority dated 23.07.2024 was set aside, and the petitioner's appeal in Form GST-APL-02 under Section 107 was restored. The appellate authority was directed to hear and dispose of the appeal on merits expeditiously, preferably within 8 weeks from the communication of the order.
Key Issues
1. Whether the High Court should entertain a writ petition when a statutory appellate tribunal is yet to be constituted, and the petitioner has a right to appeal to such a tribunal? (Question of law) 2. Whether the matter should be remanded to the appellate authority for a decision on merits, given that the petitioner's appeal was rejected solely on the ground of limitation without any adjudication on the substantive issues? (Question of mixed law and fact) Petitioner's arguments: The petitioner argued that due to the non-constitution of the appellate tribunal, the writ petition was maintainable before the High Court and sought admission of the petition and a stay on the demand. State's arguments: The State acknowledged the non-constitution of the tribunal and submitted that the writ petition could be heard on usual terms, contingent on the petitioner complying with the pre-deposit requirements under Section 112(7) of the Act. Alternatively, considering the appeal was dismissed on limitation without merit adjudication, the State suggested the High Court could either hear the writ petition directly or remand the matter back to the appellate authority.
Sections Cited
Section 107, Section 73, Section 112(7), Section 109
AI-generated summary — verify with the full judgment below
2025 Item Nos. 15 AN/Ct. No. 05 … for the petitioner Mr. A. Ray, ld. G.P. Md. T. M. Siddiqui, ld. A.G.P. Mr. Tanoy Chakraborty Mr. Saptak Sanyal Mr. Debraj Sahu … for the State
Supplementary affidavit filed on behalf of the petitioner in Court today in terms of leave granted by order dated 18.02.2025 is taken on record.
Challenging the order dated 23.07.2024 rejecting the appeal under Section 107 of the WBGST/CGST Act, 2017 arising out of an order passed under Section 73 of the said Act and the demand raised thereon in Form GST-DRC-07 dated 22.11.2023, the instant writ petition has been filed.
The writ petitioner has a statutory right of preferring an appeal before the appellate tribunal from the order which formed the subject matter of challenge in the writ petition. Unfortunately, since the appellate tribunal is yet to be constituted the present writ petition has been filed. Learned counsel appearing for the petitioner
would submit that this Court may be pleased to admit the writ petition and stay the demand.
Mr. Sanyal, learned counsel enters appearance on behalf of the respondents and while acknowledging the fact that the appellate tribunal is yet to be constituted, he submits that the writ petition may be heard on usual terms subject to the petitioner complying with the pre-deposit as provided under Section 112((7) of the said Act. Alternatively he would submit that considering the fact that the appeal has been dismissed on the ground of limitation and that there has been no adjudication at the appellate stage on merits, this Court may either take up hearing of the writ petition or may remand the matter back to the appellate authority.
Having heard learned counsel for the respective parties and noting that the petitioner’s appeal under Section 107 of the said Act has been rejected on the ground of limitation without any adjudication on merit and also considering the fact that the tribunal is yet to be constituted under Section 109 of the said Act, I am of the view that in the fitness of things, and considering that the petitioner had duly made payment of pre- deposit the appellate authority would be far more equipped to decide the matter on factual issues as such I am inclined to remand the matter back to the appellate authority for a decision on merits. 2
Accordingly, the order passed by the appellate authority dated 23.07.2024 is set aside and the appeal filed by the petitioner in Form GST-APL-02 under Section 107 of the said Act is restored. The appellate authority is directed to hear out the matter and dispose of the appeal on merits as expeditiously as possible, preferably within a period of 8 weeks from the date of communication of this order.
With the above observations and directions, the instant writ petition stands disposed of, however, with no order as to costs.
All parties to act on the basis of the server copy of this order duly downloaded from the official website of this Court. (Raja Basu Chowdhury, J.) 3
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.