Assistant Commissioner, State Tax, Durgapore Range, Government Of West Bengal vs. Ashok Kumar Sureka, Proprietor Of Subham Steel

Held

The Court held that the bona fides of the writ petitioner needed to be tested on the available documents. It noted that the first e-way bill dated September 7, 2019, was valid until September 9, 2019. The Court reasoned that in the absence of a second e-way bill, tax authorities at Durgapur could not have intercepted or detained the vehicle. Therefore, the explanation offered by the respondent was acceptable, and it could not be established that there was a deliberate and willful attempt to evade tax, justifying invocation of powers under Section 129 of the Act. The relief granted by the learned writ Court was found to be fully justified. The appeal and application filed by the department were dismissed. The appellant was directed to process the refund application filed by the respondent on March 7, 2022, within two weeks. The Court clarified that the decision was based on the peculiar facts and bona fides of the case and should not be treated as a precedent.

Facts

The Assistant Commissioner, State Tax, Durgapore Range, Government of West Bengal (appellant) filed an intra-Court appeal against an order of the learned single Bench dated March 1, 2022. The respondent, Ashok Kumar Sureka, had challenged an order passed by the Joint Commissioner (Appeal) dated March 18, 2021. This appeal was against an order of demand of tax and penalty dated September 11, 2019, issued by the Assistant Commissioner of State Tax, Durgapur Range, and a summary of order dated September 11, 2019, by the Assistant Commissioner of State Tax, Kolkata South. The goods were being transported on September 9, 2019, with an expired e-way bill, which had expired at midnight on September 8, 2019. The vehicle was intercepted at 1:30 p.m. The respondent claimed the delay was due to a vehicle breakdown, not willful evasion.

Key Issues

1. Whether the learned single Bench was justified in allowing the writ petition by accepting the explanation of a vehicle breakdown and non-willful delay in e-way bill validity, which was allegedly raised for the first time before the Court, thereby interfering with the order of demand of tax and penalty. Petitioner's arguments: The respondent (writ petitioner) argued that their bona fides were considered by the learned writ Court. They presented documents including a tax invoice dated September 7, 2019, and an e-way bill valid until midnight of September 9, 2019, for goods dispatched from SRMB Srijan Private Limited to Subham Steels in Kolkata. A second e-way bill was raised for delivery to Delhi Public School, Bidhannagar, Durgapur, with a shorter validity of September 7-8, 2019, due to a 9 km distance. The same vehicle was used for both. Revenue's arguments: The appellant (department) contended that the respondent had not stated anything about a vehicle breakdown or non-deliberate delay in the validity of the e-way bill before the appellate authority or in the writ petition pleadings. They argued the learned single Bench should not have accepted this argument presented for the first time in the writ petition and should not have interfered with the demand and penalty order.