Bishwapriya Chowdhury vs. State Of West Bengal And Ors.
Original PDF →Facts
The petitioner, Bishwapriya Chowdhury, a proprietorship firm, executed a construction work order for toilets issued by the Executive Engineer, Burdwan Panchayat Samity under the Swach Bharat Mission. The petitioner initially contended that the services and supplies were exempted. A show cause notice led to an order under Section 74 of the CGST/WBGST Act, 2017, for the financial year 2020-21 (April 2020 to March 2021), determining the petitioner's tax liability. The petitioner appealed this order. The appellate authority modified the original order, noting that tax was not charged on outward supplies because the petitioner, undertaking work under Swach Bharat Mission, did not include the tax component in invoices. The appellate authority found no willful misstatement, suppression, fraud, or evasion, and concluded the case fell under Section 73 of the Act. During the writ petition hearing, the petitioner withdrew the claim for exemption and sought liberty to raise debit notes on the Panchayat Samity.
Held
The Court noted that the petitioner, during the hearing of the writ petition, withdrew the claim for exemption from the provisions of the CGST/WBGST Act, 2017. The petitioner's counsel, on instruction, sought leave to withdraw the writ petition, requesting liberty to raise appropriate debit notes on the concerned Panchayat Samity. Since the petitioner sought to withdraw the writ petition, the Court found that nothing survived in the petition. Consequently, the writ petition was dismissed as withdrawn. The Court did not make any specific finding on the applicability of Section 73 or Section 74 of the Act in the context of the withdrawn petition, nor did it grant liberty to raise debit notes. The issue of exemption was implicitly abandoned by the petitioner's withdrawal of the claim.
Key Issues
1. Whether the petitioner is entitled to claim exemption from the provisions of the CGST/WBGST Act, 2017, for services rendered under the Swach Bharat Mission. 2. Whether the petitioner's conduct constituted willful misstatement, suppression, fraud, or evasion of tax, thereby attracting Section 74 of the Act, or if it was a case covered under Section 73. Petitioner's arguments: Initially, the petitioner argued that the services and supplies were exempted. Subsequently, the petitioner withdrew the claim for exemption and sought liberty to raise debit notes on the concerned Panchayat Samity. The petitioner's counsel stated that the petitioner no longer claimed exemption from the Act. Revenue/State's arguments: The judgment does not record specific arguments made by the respondents (The State of West Bengal & Ors.) during the hearing of the writ petition. However, the appellate order, as described, found that the case was covered under Section 73, implying a concession or finding that Section 74 was not applicable due to lack of fraud or willful suppression.
Sections Cited
Section 107, Section 74, Section 73
AI-generated summary — verify with the full judgment below
2024 Item No. M/L 25 Court No.5 Saswata
W.P.A. 12663 of 2024 Bishwapriya Chowdhury Versus The State of West Bengal & Ors. Mr. Saroj Banerjee Ms. J. Jana Mr. S. Das …For the petitioner Mr. T.M.Siddiqui Mr. Saptak Sanyal …For the respondents
The present writ petition has been filed, inter alia, challenging the appellate order dated 2nd March 2023 passed under Section 107 of the CGST/WBGST Act, 2017 (hereinafter referred to as the “said Act”).
The petitioner claims to be a proprietorship firm and in usual course after being awarded with work order for construction of toilets issued by the Executive Enginerer, Burdwan Panchayat Samity under Swach Bharat Mission, had executed the same. It is contended that the services and supplies effected by the petitioner were exempted. Notwithstanding the aforesaid, pursuant to a show cause notice issued by the respondents, an order was passed under Section 74 of the said Act in respect of the financial year 2020-21 for the tax period from April 2020 to March 2021 on 9th June, 2022, determining the liability of the petitioner.
Being aggrieved, the petitioner had preferred an appeal which culminated in the order dated 2nd March 2023, whereby the appellate authority was, inter alia, pleased to modify the same by recording that the determination
in question arises out of actual non-charging of tax on outward supplies. Such finding was returned by the appellate authority by accepting the plea taken by the petitioner that since, the petitioner had undertaken the work under Swach Bharat Mission, he did not include the tax component in the invoices and that there was no willful misstatement or suppression for evasion of tax nor was it a case of fraud as such the case was covered under Section 73 of the said Act.
Be that as it may, at the time of hearing of the present writ petition, Mr. Banerjee learned advocate appearing for the petitioner, on instruction, submits that the petitioner no longer claims exemption from the provisions of the said Act. In the facts as noted above, he seeks leave to withdraw the present writ petition. He, however, submits that necessary liberty should be afforded to the petitioner to raise appropriate debit notes on the concerned Panchayat Samity.
Having heard the learned advocates appearing for the respective parties and having considered the materials on record, I am of the view that since, the petitioner seeks leave to withdraw the writ petition nothing survives in the writ petition and the writ petition being WPA 12663 of 2024 is dismissed as withdrawn 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.) 2
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.