Shishir Kumar Roy vs. Assistant Commissioner Of State Tax

WPA/16160/2024HC CalcuttaGSTCNR WBCHCA030767202407 August 2024Bench: HON'BLE JUSTICE RAJA BASU CHOWDHURY3 pages

AI SummaryPartly Allowed

Facts

The petitioner, Shishir Kumar Roy, filed a writ petition challenging an order dated February 1, 2023, which rejected his appeal filed under Section 107 of the CGST/WBGST Act, 2017. The original order under challenge was passed under Section 74 of the said Act for the tax period April 2018 to March 2019. The appeal was filed with a delay of 13 months, and the petitioner had made the required pre-deposit. The petitioner claimed to be a layman with no knowledge of GST law, who was ill during the relevant period and dependent on his accountant. He contended that the delay was due to the accountant's improper guidance and not his own negligence. The respondents are the Assistant Commissioner of State Tax and others.

Held

The Court condoned the delay of 13 months in filing the appeal, subject to the petitioner paying costs of Rs. 5000/- to the GST authorities within a week. The Court found that while the petitioner's explanation for the delay was not entirely sufficient, there was no lack of bona fide in preferring the appeal, especially considering the pre-deposit made. The appeal was restored to its original file and number. Consequently, the order dated April 30, 2024, passed by the appellate authority, was set aside. The appellate authority was directed to hear and dispose of the appeal on merits within eight weeks. Furthermore, the Court held that the order of attachment of the petitioner's bank account, issued vide notice dated February 16, 2024, could not be sustained under Section 107(7) of the said Act and was accordingly quashed. The writ petition was disposed of with these directions.

Key Issues

1. Whether the delay of 13 months in filing the appeal under Section 107 of the CGST/WBGST Act, 2017, should be condoned, considering the petitioner's explanation of being a layman, ill, and dependent on his accountant, and in light of the pre-deposit made. The petitioner argued that there was no negligence on his part and the delay was due to his accountant's failure to guide him properly. The revenue did not appear to have made specific arguments against condonation of delay based on the provided text, but the court considered the explanation given by the petitioner. 2. Whether the order of attachment of the petitioner's bank account, issued under Form GST DRC-13, can be sustained, particularly in light of Section 107(7) of the said Act. The petitioner contended that the attachment was unsustainable.

Sections Cited

Section 107, Section 74, Section 107(7)

AI-generated summary — verify with the full judgment below

Cause title — parties, addresses and appearances

6 07.08.2024 sb Ct 5 IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE WPA 16160 of 2024 Shishir Kumar Roy Versus Assistant Commissioner of State Tax, & Ors. Mr. Siddharth Pratim Datta Ms. Sanjana Jha Mr. Rhitam Chatterjee … For the petitioner. Mr. Anirban Ray, Ld. GP Mr. T. M. Siddiqui Mr. Tanoy Chakraborty Mr. Saptak Sanyal … For the respondents. 1. Affidavit of service filed in Court today is taken on record. 2. Inter alia, challenging the order dated 1st February, 2023, rejecting the appeal under Section 107 of the CGST/WBGST Act, 2017 (hereinafter referred to as the “said Act”), the present writ petition has been filed. 3. Being aggrieved by the order passed under Section 74 of the said Act dated 1st February, 2023 for the tax period April, 2018 to March, 2019 the said appeal was filed. Simultaneously with the filing of the appeal the petitioner also made payment of pre-deposit as is required for maintaining the appeal. Admittedly, such appeal was barred by limitation. There is a delay of 13 months. 2 4. It is the petitioner’s case that the petitioner is layman having no knowledge of GST law. It is also the petitioner’s case that he was ill during the relevant period and fully dependent on his accountant. According to him, there is no negligence on his part in proceeding with the matter, however, the accountant having not properly guided the petitioner, the appeal could not be filed within the time prescribed. 5. Having heard the learned advocates appearing for the respective parties and taking note of the pre-deposit made by the petitioner it cannot be said that there is lack of bona fide on the part of the petitioner to prefer the appeal. 6. Be that as it may, although the explanation given by the petitioner does not appear to be sufficient, however, for the ends of justice, the delay in filing the appeal is condoned subject to payment of costs of Rs.5000/- to be paid by the petitioner with the GST authorities within a week from date. 7. Accordingly, the delay in filing the appeal is condoned and the appeal is restored to the original file and number. 8. As a sequel thereto, the order dated 30th April, 2024 passed by the appellate authority stands set aside. 3 9. The appellate authority is directed to hear out and dispose of the appeal on merits, preferably within a period of 8 weeks from date of communication of this

order.

10.

Further having regard to the provisions of Section 107(7) of the said Act, I am of the view that the order of attachment of the petitioner’s bank account vide notice dated 16th February, 2024, issued in Form GST DRC-13 addressed to the petitioner’s banker, Bank of Baroda cannot be sustained, the same is accordingly quashed.

11.

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

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.