Calcutta High Court (Appellete Side)
Bimal Kumar Saraf vs Union Of India Ors on 2 August, 2022
Item no. 08
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 1180 of 2022
with
IA No. CAN 1 of 2022
Bimal Kumar Saraf
vs.
Union of India Ors.
Appearance:
For the Appellant : Mr. Vinay Kr. Shraff
Ms. Priya Sarah Paul
Mr. Kaushal Agarwal
For the Respondents : Mr. Vipul Kundalia
No. 2 and 4 Mr. Abhradip Maity
For respondent No. 7 : Mr. K. K. Maiti
Mr. Tapan Bhanja
For State : Mr. A. Ray, Learned G.P.
Mr. T.M. Siddiqui, Learned A.G.P.
Mr. Debasish Ghosh
For the U.O.I. : Mr. Dhiraj Trivedi
Mr. Siddhartha Lahiri
Heard on : 02.08.2022
Judgment on : 02.08.2022
T.S. Sivagnanam J.:
Affidavit of service filed in court today is kept with the record.
This intra-Court appeal is directed against an order dated
22.07.2022 passed in CAN 2 of 2022 filed in WPA 10335 of 2021 by which the
learned Single Judge has directed the application being CAN 2 of 2022 to be
heard alongwith the main writ petition.
We are informed that the affidavits have already been exchanged
and the writ petition will be heard by the learned Single Judge.
Learned counsel for the appellant would submit that two authorities
have issued show cause notices on the same grounds which are not tenable in
law though he would admit that the appellant assessee has submitted his reply
to both the show cause notices. The other legal issue raised by him is that the
tax is recoverable from the supplier of the appellant who has been declared
insolvent under the provisions of the Insolvency and Bankruptcy Code, 2016
and the said amount cannot be sought to be recovered from the appellant. We
find that however larger relief has been sought for in the writ petition where
the appellant has prayed for a writ in the nature of declaration. Therefore, we
are of the considered view that the learned Single Judge was fully justified in
directing CAN 2 of 2022 to be heard alongwith the main writ petition.
Learned counsel for the revenue would submit that two show cause
notices have not been issued but the show cause notice has been issued by the
Audit Department to which the appellant has responded. Be that as it may,
now that the show cause notices have been issued and the appellant has
submitted his reply, it would not be proper to interdict the proceedings at this
stage of the matter.
Hence, we direct the appellant to fully cooperate in the adjudication
proceedings by submitting his reply and relevant documents in support of his
claim and the appellant shall be heard in person or through his authorized
representative and thereafter the adjudicating authority/Audit Authority shall
conclude the proceedings and pass a reasoned order but such order shall not
be enforced and shall be retained in a sealed cover awaiting further directions
in the writ petition.
Since we have not interfered with the order passed in CAN 2 of 2022
dated 22.07.2022, the said application shall be deemed to be pending before
the learned Single Judge and liberty is granted to the respondent authorities to
file their affidavit-in-opposition, if they deem it appropriate, within three weeks
from the date of receipt of the server copy of this order and reply, if any, be
filed within a week thereafter.
In view of the above, the instant appeal stands disposed of.
Consequently, the connected application also stands disposed of.
(T. S. Sivagnanam, J.)
(Hiranmay Bhattacharyya, J.)
RP/Amitava (AR. CT.)
