Ravi Taparia vs. Union Of INDIA And Ors.
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The petitioner, Ravi Taparia, filed a writ petition challenging an order dated April 5, 2023, passed under Section 73 of the WBGST/CGST Act, 2017. The petitioner contended that they were unaware of the order as it was uploaded on the portal under 'Additional Notices and Order Section'. The order raised a demand of Rs. 1,00,71,613.09/- in Form GST DRC-07, including interest and penalty. The petitioner claimed the proper officer failed to offer a personal hearing, vitiating the adjudication order. The petitioner also stated that pre-show-cause notice in Form DRC-01A and show-cause notice in Form DRC-01 were issued. The petitioner affirmed the writ petition on July 10, 2024.
Held
The Court held that the writ petition was not maintainable due to the petitioner's failure to approach the Court within a reasonable period and the unsatisfactory explanation for the delay. The Court found that the petitioner had an alternative remedy in the form of an appeal under Section 107 of the said Act. Despite these findings, considering the petitioner's prayer for leave to appeal and the fact that the appellate tribunal has not yet been constituted, the Court granted leave to the petitioner to prefer an appeal before the appellate authority. This was made subject to the petitioner paying Rs. 5,00,000/- to the respondents on account of costs within four weeks. If the payment is made, the appellate authority is directed to hear and dispose of the appeal on merits, subject to compliance with other formalities. The issue of whether the adjudication order was vitiated on the ground of violation of natural justice was not decided on merits due to the dismissal of the writ petition on grounds of delay and alternative remedy.
Key Issues
1. Whether the writ petition is maintainable given the delay in approaching the Court and the existence of an alternative remedy under Section 107 of the said Act, despite the petitioner's contention of violation of principles of natural justice due to the lack of a personal hearing? 2. Whether the petitioner should be granted leave to prefer an appeal before the appellate authority, considering the delay and the non-constitution of the appellate tribunal? Petitioner's arguments: The petitioner argued that the adjudication order is vitiated due to the failure of the proper officer to provide a personal hearing, thus violating principles of natural justice. They also contended that the non-constitution of the appellate tribunal renders them remediless if the writ petition is dismissed without granting leave to appeal. Revenue/State's arguments: The judgment records no specific arguments from the revenue or State regarding the maintainability of the writ petition or the petitioner's contentions. However, the Court noted that the explanation for the delay was not satisfactory and that the petitioner had not approached the Court within a reasonable period.
Sections Cited
Section 73, Section 107
AI-generated summary — verify with the full judgment below
ML -63 04.09.2024 b.r./D. Hira Ct No. 5
IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURI ICTION APPELLATE SIDE
WPA 17838 of 2024
Ravi Taparia Vs. The union of India & Ors.
Mr. Himangshu Kumar Ray,
Mr. Piyas Chowdhury,
Ms. Shiwani Shaw,
Mr. Subhsish Poddar.
… for the petitioner
Mr. Anirban Ray, ld. G.P.,
Mr. T.M. Siddique,
Mr. T. Chakraborty,
Mr. S. Sanyal.
… for the State
Mr. Om Narayan Rai,
Mr. Prithu Dudhoria.
… for the Union of India
Affidavit-of-service filed in Court today is taken on record.
The present writ petition has been filed inter alia, challenging an order passed under Section 73 of the WBGST/CGST Act, 2017 (hereinafter referred to as the said Act), dated 5th April, 2023. 3. The writ petition has been affirmed on 10th July, 2024, inter alia, by contending that the petitioner was not aware with regard to the order as the same was uploaded on the portal under the head of Additional Notices and Order Section.
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Having heard the learned advocates for the respective parties and considered the materials on record, I find that the explanation for delay provided in the petition is found to be not satisfactory. Although, the petitioner has claimed that the proper officer despite being obliged to offer a personal hearing having not offered the same the adjudication order stands vitiated on such ground itself, I am of the view that the petitioner having not approached this Court within a reasonable period and the explanation for the delay not being satisfactory, is not entitled to question the adjudication order on the ground of violation of statutory provision and violation of principles of natural justice, by invoking the extraordinary juri iction of the Hon’ble Court especially when there is an alternative remedy in the form of appeal before the appellate authority under Section 107 of the said Act.
Admittedly, a determination has been made by passing an order under Section 73 of the said Act and by reason thereof, a demand in Form GST DRC – 07 amounting to Rs.1,00,71,613.09/- which includes interest and penalty as well has been raised. The petitioner has successfully avoided the said
3 order up to this date and it is also not the case of the petitioner that the pre show-cause in Form DRC – 01A or the show-cause in Form DRC – 01, had not been issued.
Having regard thereto, ordinarily there would be no scope to entertain this writ petition.
At this stage, Mr. Ray, learned advocate appearing on behalf of the petitioner prays for leave to prefer an appeal before the appellate authority, as in the alternative in the absence of the appellate tribunal being constituted the petitioner shall be rendered remediless.
Having considered such submissions and the fact that the appellate tribunal is yet to be constituted, leave is granted to the petitioner to prefer an appeal before the appellate authority subject to the petitioner making payment of Rs.5,00,000/- with the respondents on account of costs. If the amount is paid by the petitioner within a period of four weeks from date, the appellate authority having regard to the above and the facts of the case, shall hear out and dispose of the appeal on merits, subject to compliance of other formalities.
With the above observations and directions, the writ petition stands disposed of.
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Urgent certified copy of this order, if applied for, be made over to the parties upon compliance of all necessary formalities.
(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.