M/S. Hajee A.P. Bava And Company Constructions Provate Limited vs. The Assistant Commissioner Of Revenue, Commercial Taxes, Midnapore Charge And Ors.
Held
The Court held that while the Act contemplates an opportunity of hearing where an adverse order is contemplated, the petitioner failed to make out a case for interference in extraordinary writ jurisdiction. This was due to the lack of explanation for the delay in filing the writ petition and the admitted fact that the petitioner did not respond to the show cause notice. The Court noted that the petitioner's assertion about the notice being in the "view additional notices" tab was not substantiated in the petition, and paragraph 2(j) of the petition affirmed that the matter was adjudicated ex parte due to non-response. The Court found no reason to afford further opportunity as statements in the petition cannot be withdrawn. Considering the alternative forum of appeal, the Court deemed it unnecessary to entertain the writ petition. However, acknowledging that the appellate tribunal under Section 112 is yet to be constituted, the Court granted liberty to the petitioner to approach the appellate authority under Section 107, subject to a payment of Rs. 50,000/- within two weeks. The appellate authority was directed to hear the appeal on merits, condoning the delay, and dispose of it expeditiously.
Facts
The petitioner, M/s Hajee A.P.Bava & Company Constructions Private Limited, challenged an order dated December 5, 2023, passed by the Assistant Commissioner of Revenue, Commercial Taxes, Midnapore Charge, under Section 73 of the WBGST/CGST Act, 2017, for the tax period July 2017 to March 2018. The petitioner argued the order was unsustainable as it was passed without an opportunity of hearing. The petitioner admitted they did not respond to the show cause notice issued on May 11, 2023, in Form GST DRC-01, claiming it was uploaded in the "view additional notices" tab. The State contended there was no explanation for the delay in filing the writ petition and no statement that the notice was in the "view additional notices" tab or that the petitioner was unaware of it.
Key Issues
1. Whether the order passed by the proper officer under Section 73 of the WBGST/CGST Act, 2017, for the tax period July 2017 to March 2018 is liable to be set aside for being passed without providing an adequate opportunity of hearing to the petitioner, contrary to statutory provisions. Petitioner's arguments: The order is contrary to statutory provisions and unsustainable. The petitioner did not respond to the show cause notice because it was uploaded in the "view additional notices" tab. Revenue's arguments: There is no explanation for the delay in filing the writ petition. The writ petition does not state that the original notice in Form GST DRC-01A was uploaded in the "view additional notices" tab or that the petitioner remained unaware of it. The petitioner did not respond to the show cause notice.
Sections Cited
Section 73, Section 107, Section 112
AI-generated summary — verify with the full judgment below
2024 Item No. ML 60 Court No.5 Saswata
WPA 17803 of 2024 M/s Hajee A.P.Bava & Company Constructions Private Limited Versus The Assistant Commissioner of Revenue, Commercial Taxes, Midnapore Charge & Ors. Mr. Rahul Pareshrampuria Mr. Udit Agarwal …For the petitioner Mr. Anirban Ray, Ld. GP Mr. Md. T.M.Siddiqui, Ld. AGP Mr. Tanoy Chakraborty Mr. Saptak Sanyal …For the State
Although, the petitioner seeks to challenge the order dated 5th December 2023 passed by the proper officer under Section 73 of the WBGST / CGST Act, 2017 (hereinafter referred to as the “said Act”) for the tax period July 2017 to March 2018 on the ground that such order had been passed without giving an opportunity of hearing to the petitioner, the learned advocate appearing for the petitioner submits that the aforesaid order passed by the respondents is contrary to the statutory provisions and as such cannot be sustained.
In response to a query of this Court he submits that the petitioner did not respond to the show cause notice issued under Section 73 of the said Act in Form GST DRC – 01 on 11th May, 2023, since the same was uploaded in the “view additional notices” tab.
Mr. Ra
The judgment continues below.
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