Calcutta High Court (Appellete Side)
Satish Kumar Jaiswal vs Designated Committee on 11 August, 2022
Item No.13.
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
HEARD ON:11.08.2022
DELIVERED ON:11.08.2022
CORAM:
THE HON'BLE MR. JUSTICE T. S. SIVAGNANAM
AND
THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA
M.A.T. No.1112 of 2022
With
I.A. No.CAN 1 of 2022
Satish Kumar Jaiswal.
Vs.
Designated Committee, Kolkata North Commissionerate
comprising of the Principal Commissioner of Central Tax,
Kolkata North Commissionerate & Ors.
Appearance:-
Mr. Akshat Agarwal ..... for the appellant.
Mr. Partha Chakraborty ... for the Union of India.
Mr. Bhaskar Prosad Banerjee ... for the CGST Authority.
JUDGMENT
(Judgment of the Court was delivered by T.S. SIVAGNANAM, J.)
1. This intra-Court appeal is directed against the order dated
29th June, 2022 passed in W.P.A. No.7767 of 2021. By the said
order, the writ petition filed by the appellant/ writ petitioner
was disposed of by directing the authority concerned to consider
and dispose of the representation given by the appellant, which
is marked as Annexure "P/5" in the writ petition within a
reasonable time and preferably within a period of eight weeks
from the date of communication of the order. Identical order
was put to challenge in M.A.T. 1111 of 2022 in the Kavita
Jaiswal Vs. Designated Committee, Kolkata North Commissionerate
& Ors. and the same was disposed of by the judgment and order
dated 26th July, 2022. The said judgment and order reads as
follows:-
"This intra-Court appeal is directed against the order dated 29th June, 2021
passed in WPA 7764 of 2021. The appellant had filed this writ petition praying for
directions upon the respondent authorities to accept payment of tax dues to the tune of
Rs.56,55,490.80 as per the Statement in Form SVLDR-3 issue discharge certificate
settling the disputes accordingly and granting all consequential reliefs from
01.04.2014 to 01.06.2017. The appellant also prayed for appropriate direction to
allow the appellant to avail the benefit of SVLDR Scheme, 2019. The writ petition
was heard on 25.11.2021 and the learned Single Judge passed the following order:-
" Heard learned advocates appearing for the parties.
The main grievance of the petitioner in this writ petition is that the
petitioner could not avail the benefit of SVLDRS in spite of her best
effort due to technical glitches in the official portal of CBIC and in
spite of bringing this problem to the notice of the respondents
concern by two representations which were not considered by the
respondents according to the petitioner.
Learned advocate appearing for the respondents is disputing this
allegation of technical glitches in the official portal of the
department, which in my view, can be considered on Affidavit by
the respondent with supporting documents and also to explain as to
what prevented them from considering the two representations of
the petitioner which has been annexed to the writ petition, made
before the respondent authority concerned about his grievance of
technical glitches it faced during the relevant time.
A responsible officer of the department must affirm the Affidavit
explaining the reason for delay in disposal of aforesaid
representation by way of affidavit.
Let the respondent file Affidavit-in-Opposition to the writ petition
by 6th December, 2021 peremptorily and reply thereto, if any, by the
petitioner on 9th December, 2021. If no such Affidavit is filed
adverse inference will be taken against the respondents.
Respondents concerned shall also give explanation on the aspect
referred hereinabove.
List this matter list on 10th December, 2021 at the top of the list.
Leave is granted to the petitioner to file supplementary affidavit
annexing the legible copy of the document regarding attachment of
bank account in question by 29th November, 2021."
On reading of the above order it is seen that the Court was satisfied that the
appellant had made out a prima facie case and precisely for such reason affidavit-in-
opposition was directed to be filed by the respondent and the writ petition was
directed to be listed on 10th December, 2021 at the top of the list. Further, the learned
writ Court had granted permission to file supplementary affidavit, which has also
been complied with. Subsequently the matter was heard on 14.12.2021 and on the
said date the learned writ Court had directed the matter to be listed for hearing after
Christmas Vacation and the respondents were directed to maintain status quo till 11 th
January, 2022 and/or until further order, whichever is earlier. Thereafter, the matter
was not listed. We are informed by the learned advocate for the appellant that the
writ petition was listed subsequently and an interim protection granted in favour of
the appellant was extended from time to time. Ultimately, the matter was heard on
29.06.2022 and the learned writ Court disposed of the writ petition by directing the
representation to be considered by the authority. In our respectful view, after
affidavit-in-opposition has been filed and the reply has also been filed to the said
affidavit-in-opposition, it would be better if decision is taken on merits of the matter
since the learned writ Court had recorded in its order dated 25.11.2021 that the
allegation of technical glitches made by the appellant was not wrong and they have
denied it. In such circumstances, by directing disposal of the representation may not
yield any result because already the respondents have filed their affidavit-in-
opposition and have made their stand clear. Therefore, we are of the view that the
writ petition should be decided on merits.
For the reasons stated hereinabove, the appeal stands allowed and the order
dated 29.06.2022 is set aside and the writ petition is restored to its original file and
number to be heard and decided by the learned Single Judge on merits and in
accordance with law.
Since the appellant had benefit of order of status quo in pending writ petition the
respondent authorities are directed not to take any coercive action against the
appellant till the writ petition is heard and disposed of. Interim order, already
granted, shall remain in force for a period of eights weeks or till the writ petition is
heard, whichever is earlier.
Consequently, connected application stands disposed of."
2. The facts of the case on hand are identical to that of the
aforementioned decision except of the slight change of dates.
In the instant case, the writ petition was filed during March,
2021 and on 29th April, 2022 the learned writ Court permitted the
affidavit-in-opposition filed by the respondent be kept on
record and directed that the respondent shall not take any
coercive action against the appellant for recovery of the demand
in question. This interim order had continued till the writ
petition was disposed of by the impugned order.
3. Considering the fact that the identical issue has been
remanded to the learned writ Court for which the writ petition
to be heard and decided on merits, we are of the opinion that an
identical direction can be issued in the present case as well.
4. For the above reasons, the appeal is allowed and the order
dated 29th June, 2022 is set aside and the writ petition is
restored to its original file and number and be heard and
decided by the learned Single Bench on merits and in accordance
with law.
5. Since the appellant had the benefit of order of status quo
pending writ petition, the respondent authorities are directed
not to take any coercive action against the appellant till the
writ petition is taken up for hearing by the learned Single
Bench.
6. We give liberty to the learned Advocate for the appellant
to mention before the appropriate learned Single Bench for early
listing of the writ petition. I.A. CAN 1 of 2022 is disposed of
accordingly.
7. No costs.
8. Urgent photostat certified copy of this order, if applied
for, be furnished to the parties expeditiously upon compliance
of all legal formalities.
(T. S. SIVAGNANAM, J)
I agree,
(HIRANMAY BHATTACHARYYA, J.)
NAREN/PALLAB(AR.C)
