Calcutta High Court (Appellete Side)
M/S. Shraddha Overseas Private ... vs The Assistant Commissioner Of ... on 16 December, 2022
Item No.14.
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
HEARD ON: 16.12.2022
DELIVERED ON:16.12.2022
CORAM:
THE HON'BLE MR. JUSTICE T. S. SIVAGNANAM
AND
THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA
M.A.T No.1860 of 2022
with
I.A. No.CAN 1 of 2022
with
I.A. No.CAN 2 of 2022
M/s. Shraddha Overseas Private Limited & Anr.
Vs.
The Assistant Commissioner of State Tax, Chandni Chawk
& Princep Street Charge & Ors.
Appearance:-
Mr. Ankit Kanodia,
Ms. Megha Agarwal,
Mr. Jitesh Sah ... for the appellants.
Mr. T. M. Siddique,
Mr. Debasish Ghosh,
Mr. Nilotpal Chatterjee,
Mr. V. Kothari .... for the State.
JUDGMENT
(Judgment of the Court was delivered by T.S. SIVAGNANAM, J.)
Re: I.A. No. CAN 1 of 2022
1. This is an application to condone the delay of 33 days in
filing the instant appeal.
2. We have heard Mr. Ankit Kanodia, learned counsel appearing
for the appellants duly assisted by Ms. Megha Agarwal, learned
Advocate and Mr. T. M. Siddique, learned counsel appearing for
the respondents/State.
3. We are satisfied with the reasons assigned in the affidavit
filed in support of the application. Accordingly, the delay in
filing the instant appeal is condoned.
4. The application for condonation of delay being I.A. No.CAN
1 of 2022 is allowed. There shall be no order as to costs.
Re: MAT 1860 of 2022
5. This appeal has been filed by the writ petitioner
challenging an order passed by the learned Single Bench
declining to grant interim relief sought for. The learned
Advocate for the appellants as advanced their arguments in the
main writ petition itself. Therefore, by this order, the appeal
and the writ petition stand disposed of.
6. On going through the order passed by the appellate
authority dated 30th June, 2022, it is seen that it is an
elaborate order in which the entire factual matrix has been
brought on record by the appellate authority. Interestingly, in
page 5 of the order, under the heading "Observations of this
chair" substantial portion of the transaction have been found by
the appellate authority to have been done with valid
documentation. However, a doubt had arisen in the mind of the
appellate authority with regard to the genuineness of the
transaction going by the pay load of the vehicles, which was
used for transporting the goods in question.
7. After noting these facts, the appellate authority straight
away refers to the action taken by the tax authorities of
Ultadanga wherein two separate enquiries were conducted in the
business premises of M/s. Suraj Enterprise and the enquiry was
conducted on 14th November, 2019 and 17th February, 2020.
Admittedly, the transaction done by the appellant was in
October, 2018. Thus, to conclude that the other end dealer is a
non-existing dealer, there should be material to show that on
the date when the appellants had transaction with him, there was
no valid registration. If the cancellation of the registration
of the other end dealer is by way of retrospective cancellation,
then the question would be as to whether it would affect the
transaction done by the appellants, more particularly when the
appellants have been able to show that the payments for the
transaction have been done through banking challans.
8. Thus, we find that the appellate authority was solely
guided by the action taken by the Ultadanga tax authorities
without examining the specific facts and circumstances of the
case on hand.
9. Further, the case of the appellants is that in the show
cause notice, there was no such allegation against the
appellants and though several grounds were raised by the
adjudicating authority, none of the grounds were considered.
10. Thus, we find that the order passed by the appellate
authority to be a non-speaking order in the sense that there is
no independent finding rendered by the appellate authority qua
the allegation against the appellants. Therefore, it is a fit
case where the matter should be remanded back to the appellate
authority to specifically consider the contentions, which was
advanced by the appellants and also the fact that the other end
dealer's registration was cancelled with retrospective effect.
11. For the above reasons, the appeal along with connected
application and the writ petition are allowed and the order
passed by the appellate authority dated 30th June, 2022 is set
aside and the matter is remanded back to the appellate authority
for fresh consideration after affording an opportunity of
personal hearing to the authorised representative of the
appellants.
12. There shall be no order as to costs.
13. 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)
