Anushree Madhogaria vs. Assistant Commissioner Of State Tax, Howrah And Kadamtala Charge And Ors.

Held

The Court held that the appellate authority ought to have taken a pragmatic view, even if the conditions in the Notification dated November 2, 2023, were not strictly fulfilled, especially considering that the Appellate Tribunal under the said Act was yet to be constituted. The Court noted that prior to the filing of the appeal, the respondents had already realized a sum in excess of twelve and a half per cent of the amount of tax in dispute, though the petitioner claimed the entirety had been realized. The Court set aside the order of the appellate authority dated May 30, 2024, and remanded the matter back to the appellate authority for a decision on merits. The appellate authority was directed to hear and dispose of the appeal expeditiously, preferably within eight weeks, after giving an opportunity of personal hearing to the petitioner. It was also clarified that the matter should not be dealt with by the same officer who passed the original order under challenge.

Facts

The petitioner, Anushree Madhogaria, challenged an order passed under Section 73 of the CGST/WBGST Act, 2017, dated February 27, 2023, for the tax period April 2021 to March 2022. An appeal was filed on January 31, 2024, to avail the benefit of a Notification dated November 2, 2023. This notification allowed appeals filed by January 31, 2024, with a pre-deposit of 12.5% of the disputed tax. The petitioner claimed the entire demand had been realized before filing the appeal. The appellate authority dismissed the appeal by an order dated May 30, 2024, citing limitation, and overlooking the provisions of the November 2, 2023 Notification. The respondents did not dispute that the entire demand had been realized.

Key Issues

1. Whether the appellate authority erred in dismissing the appeal on grounds of limitation, despite the petitioner filing the appeal within the extended period stipulated by the Notification dated November 2, 2023, and having deposited the required pre-deposit? (Question of law and mixed fact and law, turning on Notification dated November 2, 2023, and Section 107 of the CGST/WBGST Act, 2017). Petitioner's arguments: The petitioner contended that as per the Notification dated November 2, 2023, if an appeal against an order under Section 73/74 was filed by January 31, 2024, along with the prescribed pre-deposit, the appellate authority was bound to consider it on merits. They argued that since the entire demand had been realized and the appeal was filed within the stipulated time, the appellate authority should have considered it on merits and erred by dismissing it on limitation, overlooking the notification. They sought a remand for fresh decision or a decision on merits by the High Court. Revenue's arguments: The respondents, represented by the learned Additional Government Pleader, did not dispute that the entire demand had been realized.