Ashok Kumar Saha vs. The State Of West Bengal And Ors.
Original PDF →Facts
The petitioner, Ashok Kumar Saha, challenged a show cause notice dated August 23, 2023, and an order dated December 5, 2023, passed under Section 73 of the CGST/WBGST Act, 2017. The tax period in question was July 2017 to March 2018. The petitioner argued that a previous show cause notice for the same period was dropped on August 22, 2023, and the subsequent notice issued the next day was beyond the scope of the original pre-show cause notice and issued without jurisdiction. The State contended that the petitioner did not respond to the show cause notice but made a partial payment of tax, and an adjudication order was passed. The State argued that the Court should not interfere given the efficacious alternate remedy available.
Held
The Court held that the petitioner, having not responded to the initial show cause notice and having made a partial payment of tax liability (Rs. 7,651.16/- each for CGST & WBGST) on September 20, 2023, could not approach the High Court at this stage after the adjudication order under Section 73 of the Act had been passed. The Court found that the petitioner did not previously challenge the jurisdiction of the proper officer to issue the show-cause notice. Therefore, the writ petition was disposed of with a direction that this order would not prevent the petitioner from approaching the appellate authority. If an appeal is filed within two weeks with a condonation of delay application, the appellate authority is directed to condone the delay, hear, and dispose of the appeal on merits expeditiously, preferably within eight weeks, subject to the petitioner complying with all other formalities.
Key Issues
1. Whether the show cause notice dated August 23, 2023, issued for the tax period July 2017 to March 2018, was without jurisdiction, given that a prior show cause notice for the same period was dropped on August 22, 2023, and the subsequent notice was allegedly beyond the scope of the original pre-show cause notice, thereby rendering the adjudication order dated December 5, 2023, also without jurisdiction, as argued by the petitioner under Section 73 of the CGST/WBGST Act, 2017. Petitioner's Contention: The petitioner argued that the fresh show cause notice issued on August 23, 2023, was beyond the scope of the original pre-show cause notice and that there is no statutory provision empowering the authority to proceed after an order dropping proceedings under Section 73 of the Act has been passed. Therefore, both the show cause notice and the subsequent order were without jurisdiction. Revenue's Contention: The State argued that the petitioner did not respond to the show cause notice but made a partial payment of tax. The State contended that the Court should not interfere at this stage as an efficacious alternate remedy is available to the petitioner.
Sections Cited
Section 73
AI-generated summary — verify with the full judgment below
2024 Item No. ML 116 Saswata
W.P.A. 16573 of 2024 Ashok Kumar Saha versus The State of West Bengal & Ors. Mr. P.Majumdar Ms. U. Ali …For the petitioner Mr. Anirban Ray, Ld. GP Mr. Md. T.M.Siddiqui Mr. Tanoy Chakraborty Mr. D.Sahu …For the State
The present writ petition has been filed, inter alia, challenging the show cause notice dated 23rd August 2023 for the tax period from July 2017 to March 2018 issued in Form GST DRC – 01 as also the order dated 5th December 2023 passed under Section 73 of the CGST/WBGST Act, 2017 (hereinafter referred to as the “said Act”) for the self same assessment year.
Mr. Majumdar, learned advocate appearing for the petitioner by referring to the show cause notice issued in Form GST DRC – 01 dated 28th February 2023 for the tax period from July 2017 to March 2018 submits that the aforesaid show cause notice was dropped by the authorities by passing an order dated 22nd August 2023. On the very next date, i.e., on 23rd August 2023, a fresh show cause was issued. According to him, the show cause dated 23rd August 2023 is beyond the scope of the original pre-show cause notice issued in Form GST DRC – 01A. He, however, submits that there is no statutory provision which empowers the authority from proceeding further on the basis of an order passed under Section 73 of the said Act, whereby the proceedings under the said Act stands dropped.
He submits that since the proceeding initiated by the proper officer by issuing show-cause on 23rd August, 2023 is without juri iction, the order passed by the proper
2 officer on 5th December, 2023 is also without juri iction. Accordingly, the same should be set aside.
Mr. Ray, learned Government Pleader appearing for the respondents submits that though the petitioner did not respond to the said show cause, the petitioner had, in compliance with the show cause notice, made payment of a part of the tax. Subsequently, an adjudication order was passed by proper officer on 5th December, 2023. According to Mr. Ray, at this stage this Court should not interfere with the order passed by the proper officer, especially in view of the fact that there is an efficacious alternate remedy available to the petitioner.
Having heard the learned advocates appearing for the respective parties and having considered the materials on record, I find that despite being served with a show cause notice, the petitioner chose not to respond. However, the petitioner appears to have complied with the show cause notice though partially and had paid tax liability to the extent of Rs.7,651.16/- each for CGST & WBGST by making payment thereof, in Form GST DRC – 03 on 20th September 2023. 6. Having regard thereto, I am of the view that the petitioner having not previously challenged the juri iction of the proper officer to issue the show-cause notice, cannot be permitted to approach this Court at this stage after the adjudication order under Section 73 of the said Act has been passed.
It is made clear that this order shall not stand in the way of the petitioner in approaching the appellate authority, if so advised. If such appeal is filed within a period of two
3 weeks from date along with the application for condonation of delay, the appellate authority having regard to the peculiar facts of the case, by condoning the delay, shall hear out and dispose of the appeal on merits as expeditiously as possible preferably within a period of 8 weeks from the date of filing such appeal, subject to compliance of all other formalities by the petitioner.
With the above observations and directions, the writ petition being WPA 16573 of 2024 is accordingly disposed of without any order as to costs.
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.)
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.