Basanti Medical Stores And Anr. vs. The State Of West Bengal And Ors.
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The petitioners, Basanti Medical Stores & Anr., challenged actions taken by the West Bengal GST authorities. These actions followed an order of rectification dated May 2, 2024, which disposed of the petitioners' application for rectification. The original determination of tax liability was made on December 7, 2023, under Section 73 of the WBGST/CGST Act, 2017, for the period July 2017 to March 2018. The petitioners allege that Rs. 88,635 was recovered from their Electronic Cash Ledger on June 4, 2024, before the appeal period expired. Subsequently, the authorities issued Form GST DRC-13, attaching the petitioners' bank account. The writ petition was filed on July 19, 2024.
Held
The Court held that the petitioners could not challenge the orders dated December 7, 2023, and May 2, 2024, by invoking the extraordinary writ jurisdiction, as an efficacious alternative remedy under Section 107 of the said Act was available. The Court noted that the petitioners had not yet filed an appeal from the Section 73 order, for which they had sought rectification. The Court permitted the petitioners to approach the appellate authority within 15 days from the date of the order. The appellate authority was directed to condone the delay, considering the pendency of the writ petition, and hear the appeal on merits within 8 weeks of filing. The appellate authority was also directed to consider the recovery already made and, if more than 10% of the tax in dispute had been recovered, not insist on further pre-deposit. If 10% of the tax in dispute was recovered or deposited as pre-deposit, the orders under challenge would be deemed stayed, and the bank account attachment would not be given further effect, in accordance with Section 107(7) of the said Act.
Key Issues
1. Whether the petitioners can challenge the order dated December 7, 2023, and the rectification order dated May 2, 2024, by invoking the writ jurisdiction of the High Court, given the availability of an alternative appellate remedy under Section 107 of the said Act. Petitioner's argument: The petitioners contended that the recovery of Rs. 88,635 from their Electronic Cash Ledger was irregular as it occurred before the expiry of the appeal period, which ended on August 2, 2024. They sought a direction for the refund of this amount. Revenue's argument: The learned Government Pleader appeared for the State GST authorities. The judgment records no specific arguments made by the revenue regarding the petitioners' claims, other than their appearance.
Sections Cited
Section 73, Section 107, Section 107(7)
AI-generated summary — verify with the full judgment below
2024 Item No. AD 12 Saswata
W.P.A. 18535 of 2024 Basanti Medical Stores & Anr. versus The State of West Bengal & Ors. Mr. Himangshu Kr. Ray …For the petitioners Mr. Anirban Ray, Ld. GP Mr. Md. T.M.Siddiqui Mr. Tanoy Chakraborty Mr. S. Sanyal …For the State
Affidavit of service filed in Court today is retained with the record.
The instant writ petition has been filed, inter alia, challenging the steps taken by the respondents pursuant to an order of rectification dated 2nd May 2024. It is the petitioners’ case that a determination was made on 7th December 2023 under Section 73 of the WBGST / CGST Act, 2017 (hereinafter referred to as the “said Act”) in respect of the tax period from July 2017 to March 2018. The petitioners had, thereafter, applied for rectification by an application dated 6th January 2024. Such rectification application was disposed of by an order dated 2nd May 2024. Subsequently, the WBGST authorities had proceeded to enforce their demand issued in Form GST DRC – 07 dated 7th December 2023 and had accordingly issued the Form GST DRC – 13, thereby attaching the petitioners’ bank account maintained with the Bank of Boroda, Raiganj Branch.
Mr. Ray, learned advocate appearing for the petitioners would submit that even prior to attaching the petitioners’ bank account, a sum of Rs.88,635/- had been recovered from the petitioners’ Electronic Cash Ledger, on 4th June, 2024, which according to him constitutes 43 per cent of the demanded tax. He submits that the aforesaid recovery is irregular as the respondents proceeded to recover the said amount even before the period of expiry of filing of the appeal. He further submits that the time to file an appeal from the order dated 2nd May 2024 had only expired on 2nd August 2024. In view thereof, he submits that this Hon’ble Court may be pleased to direct the respondents to refund the amount which had been illegally recovered from the petitioners.
Mr. Ray, learned Government Pleader enters appearance on behalf of the State GST authorities.
Having heard the learned advocates appearing for the respective parties and having ascertained that the petitioners, till date, have not preferred any appeal from the order passed under Section 73 of the said Act, in respect whereof, the petitioners had sought for rectification which was turned down by order dated 2nd May 2024, I am of the view that the petitioners cannot be permitted to challenge the aforesaid order dated 7th December, 2023 or the order dated 2nd May, 2024, before this Court by invoking the extra ordinary writ juri iction, especially when there is an efficacious alternate remedy available to the petitioners.
It appears that the present writ petition was filed on 19th July 2024. Having regard thereto, I permit the petitioners to approach the appellate authority. In the event, the petitioners approach the appellate authority within a period of 15 days from date, the appellate 2
authority, having regard to the pendency of the writ petition before this Court, shall condone the delay and hear out the appeal on merits within a period of 8 weeks from the date of filing of the appeal. The appellate authority shall take note of the recovery already made from the petitioners and if it is found that the sum in excess of 10 per cent of the tax in dispute has already been recovered, the appellate authority shall not insist for any further pre deposit.
In the event, the appeal is filed within the time prescribed hereinabove, and if it is found that 10 per cent of the tax in dispute has already been recovered from the petitioner or in the alternative if the above amount is deposited as pre-deposit along with the appeal, having regard to the provisions contained under Section 107(7) of the said Act, the orders which shall form subject matter of challenge before the appellate authority, shall be deemed to be stayed and consequentially, the order of attachment of the petitioners’ bank account issued in Form GST DRC – 13 dated 25th June, 2024 shall not be given further effect.
With the above directions and observations, the writ petition being WPA 18535 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.