Lohia Jute Press Private Ltd vs State Of West Bengal & Ors
2022 Latest Caselaw 2293 Cal

Item no. 06


               IN THE HIGH COURT AT CALCUTTA
                      CIVIL APPELLATE JURISDICTION
                             APPELLATE SIDE

Present:
The Hon'ble Justice T.S. Sivagnanam
              And
The Hon'ble Justice Hiranmay Bhattacharyya


                               MAT 442 of 2022
                                     with
    IA No. CAN 1 of 2017 (Old No. CAN 7530 of 2017)
                             IA No. CAN 1 of 2022


                             Lohia Jute Press Private Ltd.
                                         vs.
                             State of West Bengal & ors.


Appearance:

For the Appellants       :   Mr. Mainak Bose
                             Ms. Sweta Mukherjee

For the Respondents      :   Mr. A Ray, Ld. Government Pleader

Mr. T.M. Siddiqui Mr. D. Ghosh

Heard on : 22.04.2022

Judgment on : 22.04.2022

T.S. Sivagnanam J.:

This intra-Court appeal is directed against the order dated

24.03.2022 passed in WPA 5012 of 2022 refusing to pass an ad interim

order as sought for by the appellant/writ petitioner. The writ petition

was filed challenging the order passed by the authority under West

Bengal Value Added Tax Act, 2003 (WBVAT) dated 27.06.2013,

10.07.2014 and 26.09.2019. These orders are the orders passed by the

assessing officer, the appellate authority and the revisional authority

respectively.

The issue involved in this writ petition is whether the activity

done by the appellant is sovereign function as they are engaged in

printing of electoral photo identity cards pursuant to the contract given

by the Election Commission of India. The present assessment pertains

to supply of printed photo identity cards to the State of Uttarakhand.

The appellant had placed reliance on the communication sent by the

Chief Electoral Officer, Uttarakhand stating that no sales tax is

chargeable under the rules of Printing of Electoral Photo Identity Cards

and the appellant should not include any sales tax while submitting bill

to the Chief Electoral Officer, Uttarakhand. Based on such document

the appellant has not collected sales tax and, however, in the

assessment proceeding the assessing officer held that the activity is one

of works contract as there is deemed sale involved and accordingly

completed the assessment. Aggrieved by that the appellant approached

the appellate authority, who was also of the view that the reference to

the circulars by the appellant was not tenable as those circulars and

letters were issued during the period when WBVAT Act was not in force.

Prima facie we are of the view that the correct approach as to

how such communication to be interpreted as the contents of the

communication is more important and germane. The

petitioner/appellant has also placed reliance on the decision of West

Bengal Commercial Taxes Appellate and Revisional Board in Revision

VAT Cases No.1249 of 2010-11 and 1250 of 2010-11 wherein the stand

of the appellant was accepted insofar as the supply of photo identity

cards done by them dated 15.10.2015. On revision before the revisional

authority the appellant was unsuccessful.

Considering the facts and circumstances of the case as well as

the orders passed by the revisional Court dated 15.10.2015 as well as

the letters given by the Chief Electoral Officer, we are of the view that

the appellant has made out a prima facie case for grant of interim order.

If interim orders are not granted to the appellant, the respondents would

proceed to recover the tax levied on the appellant and this will lead to

multiplicity of proceedings. Therefore the balance of convenience is also

in favour of the appellant and that apart hardship would be caused to

the appellant as the findings in the impugned proceeding may have a

cascading effect on the appellant's activities as they are carrying on

printing activity for several States in the country. That apart, the Chief

Electoral Officer has given a letter on 25.01.1995 stating that no sales

tax is chargeable under the rules for Photo Identity Card which is

printed and supplied by the appellant.

Considering all these facts, we are of the view that the orders

which are impugned in the writ petition should not be given effect to and

shall remain stayed till the disposal of the writ petition. We make it

clear that the observations made by us in this order will not in any

manner prejudice the rights and contentions of the respondents which

they may raise in the affidavit-in-opposition to the writ petition and the

observations made by us are only to support the conclusion arrived at

by us that the appellants have made out a case for grant of interim order

in pending writ petition.

Hence, the appeal and the application stand allowed. In the

light of the above, the Garnishee Order shall remain suspended and

consequently, the respondent authorities are directed to lift the

attachment of bank account within three days from receipt of the server

copy of this judgment by duly intimating the bank to do so.

As requested by the learned counsel for the State, time for

filing affidavit-in-opposition is extended by six weeks from date. Reply,

if any, be filed within three weeks thereafter.

(T. S. Sivagnanam, J.)

(Hiranmay Bhattacharyya, J.)

RP/Amitava (AR. CT.)