Yogesh Kumar Agarwal vs. Deputy Comms. Of Revenue, State Tax, Bally And Salkia Charge And Ors.
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The petitioner, Yogesh Kumar Agarwal, is aggrieved by an order dated March 30, 2024, passed by the appellate authority rejecting his appeal. The appeal was filed against an order dated September 19, 2023, passed by the proper officer under Section 73 of the WBGST/CGST Act, 2017, for the tax period July 2017 to March 2018. The appellate authority rejected the appeal for non-compliance with Section 107(6) of the Act. The petitioner claims Rs. 45,00,000/- has been recovered, while the State submits Rs. 31,56,814/- has been recovered by debiting the petitioner's credit ledger against a total demand of Rs. 65,20,423/-. The writ petition was filed as the appellate tribunal has not yet been constituted.
Held
The Court held that in light of the peculiar facts and the admitted recovery of a sum exceeding 10 per cent of the disputed tax, it would be prudent to remand the matter back to the appellate authority. The Court found that the admitted recovery of Rs. 31,56,814/- (out of a total demand of Rs. 65,20,423/-) meant there could no longer be any impediment to hearing the appeal on its merits. The Court reasoned that denying the petitioner the opportunity to approach the appellate tribunal due to non-compliance with Section 107(6) was not appropriate given the substantial recovery. The order dated March 30, 2024, was stayed, and the matter was remanded to the appellate authority for reconsideration afresh, taking into account the observations regarding the admitted recovery.
Key Issues
1. Whether the appellate authority was justified in rejecting the appeal filed by the petitioner under Section 107 of the WBGST/CGST Act, 2017, for non-compliance with Section 107(6) of the said Act, given the admitted recovery of a substantial portion of the disputed tax demand? Petitioner's contention: The petitioner argued that since a significant amount, Rs. 45,00,000/-, has already been recovered, there should be no impediment to hearing the appeal on merits. He further submitted that the writ petition was filed due to the non-constitution of the appellate tribunal. Revenue/State's contention: The State contended that the petitioner did not comply with the provisions of Section 107(6) of the said Act, rendering the appellate authority's order valid. They presented a fact sheet indicating Rs. 31,56,814/- was recovered and suggested that factual issues requiring reconciliation exist, but this did not invalidate the appellate order.
Sections Cited
Section 73, Section 107, Section 107(6)
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2024 Item No. AD 2 Saswata
W.P.A. 13789 of 2024 Yogesh Kumar Agarwal versus Deputy Commissioner of Revenue, State Tax, Bally & Salkia Charge & Ors. Mr. Sandip Choraria Mr. Rishav Manna …For the petitioner Mr. Anirban Ray, Ld. GP Mr. Md. T.M.Siddiqui, AGP Mr. Tanoy Chakraborty Mr. S. Sanyal Mr. N.Chatterjee …For the State
Being aggrieved by an order passed by the proper officer on 19th September 2023 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, an appeal was filed before the appellate authority under Section 107 of the said Act. Such appeal was rejected by an order dated 30th March 2024, inter alia, on the ground that the same had been filed without complying with the provisions of Section 107(6) of the said Act.
Mr. Choraria, learned advocate appearing in support of the instant writ petition would submit that already a sum or Rs.45,00,000/- has been recovered from the petitioner and as such there can be no impediment in hearing the matter on merits. He submits that although the petitioner has a statutory right to file an appeal before the appellate tribunal, since the appellate tribunal has not yet been constituted, the present writ petition has been filed.
Mr. Siddiqui, learned Additional Government Pleader, by placing before this Court a fact sheet dated 28th
August 2024 prepared by the respondent no. 1 would submit that on the basis of the records available with him, a sum of Rs.31,56,814/- has been recovered from the petitioner by debiting his credit ledger. He submits that these are factual issues and having regard to the recovery made the matter may require reconciliation, but the same does not, in any way, render the order passed by the appellate authority, bad since according to the respondents the petitioner did not comply with the provisions of Section 107(6) of the said Act.
Heard the learned advocates appearing for the respective parties and considered the materials on record.
Admittedly in this case, it is noticed that a sum of Rs. 31,56,814/- out of total demand on account of tax amounting to Rs.65,20,423/- as appearing in Form GST DRC – 07 dated 19th September 2023 has already been recovered. The petitioner further claims that he had also made a voluntary deposit and that a sum of Rs. 45,00,000/- in aggregate has already been paid/recovered against the above demand. Ordinarily, this Court would be required to embark an enquiry by reconciling the accounts since, the petitioner has been denied the benefit of approaching the appellate tribunal.
Having regard to the peculiar facts of this case, I am of the view that in fitness of things, it would be prudent to remand the matter back to the appellate authority and having regard to the admitted recovery, there can no longer be any impediment in hearing out the appeal on merits, since a sum in excess of 10 per cent of the tax which is in dispute has been recovered from the petitioner. 2
Thus, while staying the order dated 30th March 2024, I remand the matter back to the appellate authority for reconsidering the same afresh, having regard to the observations made hereinabove.
With the above observations and directions, the writ petition being WPA 13789 of 2024 is accordingly disposed of.
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.) 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.