Sarabindu Chatterjee vs. Assistant Commissioner Of Revenue, State Tax, Serampore Charge And Ors.

WPA/16013/2024HC CalcuttaGSTCNR WBCHCA030317202419 August 2024Bench: HON'BLE JUSTICE RAJA BASU CHOWDHURY4 pages

AI SummaryRemanded

Facts

The petitioner, Sarabindu Chatterjee, filed a writ petition challenging a show cause notice dated September 18, 2023, issued under Section 73 of the CGST/WBGST Act, 2017, for the tax period July 2017 to March 2018. The petitioner contended that the show cause notice did not offer a personal hearing, rendering the subsequent final order dated December 5, 2023, unsustainable. The petitioner also stated that Rs. 6,67,718/- had already been realized from them, as evidenced by their electronic credit ledger. The State respondents argued that the petitioner failed to respond to the show cause notice, did not file an appeal against the final order, and filed the writ petition after a significant delay.

Held

The Court acknowledged that the show cause notice did not contemplate an opportunity for hearing. However, it noted that the petitioner neither responded to the show cause notice nor challenged it immediately. The petitioner also allowed the final order to be passed and did not pursue the alternative remedy of appeal. While the petitioner provided an explanation for the delay in filing the writ petition, the Court was of the view that no interference was warranted given the lack of response to the show cause notice. Nevertheless, considering that the petitioner has an alternative remedy of appeal and that a sum of Rs. 6,67,718/- has already been realized, the Court directed the petitioner to approach the appellate authority. The appeal, if filed within two weeks along with the balance pre-deposit (crediting the amount already paid), should be considered by the appellate authority, who shall condone the delay and dispose of the appeal expeditiously, preferably within eight weeks.

Key Issues

1. Whether the final order passed under Section 73(9) of the CGST/WBGST Act, 2017, is unsustainable due to the absence of a personal hearing contemplated in the show cause notice, thereby violating principles of natural justice? Petitioner's Arguments: The petitioner argued that the final order is invalid because the show cause notice did not offer a personal hearing. They also highlighted that a substantial amount of Rs. 6,67,718/- has already been recovered from them, which they believe corroborates their grievance. Revenue's Arguments: The State respondents contended that the petitioner did not respond to the show cause notice. They further argued that the petitioner failed to avail the alternative remedy of appeal against the final order and filed the present writ petition after a considerable delay of over six months from the date of the order, thus urging the Court not to interfere.

Sections Cited

Section 73, Section 73(9)

AI-generated summary — verify with the full judgment below

Cause title — parties, addresses and appearances

M/L 94 19.08.2024 sb Ct 5 IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE WPA 16013 of 2024 Sarabindu Chatterjee Versus Assistant Commissioner of Revenue, State Tax, Serampore Charge & Ors. Mr. Somnath Roy Chowdhurty Ms. Sanjana Jha Mr. Thitam Chatterjee … For the petitioner. Mr. Anirban Ray, Ld. GP Mr. T. M. Siddiqui Mr. Tanoy Chakraborty Mr. Saptak Sanyal … For the State. 1. Affidavit of service filed in Court today is taken on record. 2. The present writ petition has been filed, inter alia, challenging a show cause notice dated 18th September, 2023, issued in Form GST DRC -01, for the tax period July, 2017 to March, 2018, under Section 73 of the CGST/WBGST Act, 2017 (hereinafter referred to as the “said Act”). 3. The petitioner complains that the said show cause notice did not contemplate offering of personal hearing to the petitioner and, as such, on such ground the final order passed by the proper officer under Section 73(9) of the said Act dated 5th 2 December, 2023 for the tax period July, 2017 to March, 2018 cannot be sustained and should be set aside. 4. Mr. Roychowdhury, learned advocate appearing on behalf of the petitioner would submit that subsequent to passing of the aforesaid order the respondents have already realized a sum of Rs.6,67,718/- from the petitioner. Such fact would corroborate from the electronic credit ledger of the petitioner appearing at page 45 of the writ petition. 5. Mr. Siddiqui, learned Additional Government Pleader appearing on behalf of the State respondents would submit that the petitioner did not respond to the show cause, subsequently the order impugned was passed. Even thereafter, no step was taken by the petitioner to prefer an appeal. After lapse of more than six months from the date of passing of the order, the present writ petition has been filed. He submits that in the given facts this Hon’ble Court may be pleased not to interfere with

the order.

Heard the learned advocates appearing for the respective parties and considered the materials on record. Admittedly in this case a show cause notice was issued to the petitioner. It is true, that the show

3 cause notice did not contemplate offering an opportunity of hearing. However, the petitioner had neither filed any response to the show cause nor did the petitioner challenge such show cause before this Court immediately after such show cause was issued. In fact the petitioner permitted the order to be passed by the proper officer. Even thereafter the petitioner did not challenge the same either by filing an appeal or by filing a writ petition before this Court. Although an explanation has been provided by the petitioner as regards the delay in filing of the writ petition, I am of the view that in the given facts no interference is called for especially in view of the fact that no response to the show cause was filed by the petitioner. However, taking note of the fact that the petitioner has an alternative remedy in the form of an appeal and a sum of Rs.6,67,718/- has already been realized from the petitioner, as would corroborate from the electronic credit ledger, I am of the view that the petitioner should approach the appellate authority under the said Act.

If such appeal is filed by the petitioner within a period of two weeks from date along with the balance amount of pre-deposit after giving credit to the said sum of Rs.6,67,718/-, the appellate authority having due regard to the pendency of the

4 present writ petition before this Court by condoning the delay shall hear out and dispose of the said appeal as expeditiously as possible, preferably within a period of eight weeks from the date of communication of this order.

With the above observations and directions, the writ petition is disposed of.

There shall be no order as to costs.

Urgent Photostat certified copy of this order, if applied for, be made available to the parties upon compliance of requisite 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.