Calcutta High Court (Appellete Side)
Santosh Kumar Gupta vs The Assistant Commissioner Of ... on 16 December, 2022
Item No.13.
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.1824 of 2022
with
I.A. No.CAN 1 of 2022
Santosh Kumar Gupta.
Vs.
The Assistant Commissioner of Revenue, Howrah Zone & Ors.
Appearance:-
Ms. Rita Mukherjee,
Mr. Abhijat Das ... for the appellant.
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.)
1. This intra Court appeal by the writ petitioner is directed
against the order dated 22nd September, 2022 passed in W.P.A.
No.20530 of 2022. This is the second round of litigation, which
the appellant has initiated. The appellant initially filed WPA
No.3320 of 2022, which was disposed of by an order dated 14 th
March, 2022 and the said order was put to challenge by way of an
intra-Court appeal in MAT 651 of 2022 and by a judgment dated 5 th
July, 2022, the appeal was disposed of with a direction to the
authority to issue fresh show cause notice giving liberty to the
appellant to raise all contentions. Pursuant to such direction,
show cause notice was issued. The appellant appears to have
discovered a new point stating that the search itself was
illegal. The authorities, who issued the show cause notice had
no jurisdiction to do so and on these grounds, the present writ
petition was filed, which has been dismissed by the impugned
order. Aggrieved by the same, the appellant is before us by way
of this appeal.
2. We have heard Ms. Rita Mukherjee, learned Advocate
appearing for the appellant and Mr. T. M. Siddique, learned
Advocate for the State.
3. Pursuant to the directions issued by this Court, show cause
notice was issued to the appellant and it appears that there
were three reminders sent to the appellant by the Assistant
Commissioner, Bureau of Investigation, (South Bengal), Howrah.
The appellant submitted a reply on 28 th April, 2022 in which
among other things, the appellant wanted to cross-examine the
adjudicating authority himself and has also raised certain
grounds questioning the validity of the search. The authority
has passed an order dated 30th November, 2022. Admittedly, as
against the said order, the appellant has an effective alternate
remedy but without exhausting such remedy, the appellant cannot
indirectly maintain a challenge to a search, which had
ultimately culminated in a show cause notice.
4. Therefore, the proper course to be adopted by the appellant
is to prefer an appeal against the order of the adjudicating
authority dated 30th November, 2022.
5. Accordingly, the appeal stands disposed of along with
connected application by directing the appellant to file an
appeal before the concerned appellate authority within a period
of 30 days from the date of receipt of the server copy of this
order. If the same is complied with, the appeal shall be
entertained by the appellate authority without rejecting the
same on the ground limitation.
6. The appellant is at liberty to raise all factual and legal
issues including the grounds raised by him in the writ petition
questioning the validity of the search, jurisdiction of the
adjudicating authority, etc. After affording an opportunity of
personal hearing to the appellant, the appellate authority shall
dispose of the appeal by passing a reasoned order.
7. In the light of the above direction, the costs which has
been imposed on the appellant stands vacated.
8. It is submitted by the learned Advocate appearing for the
appellant that already sum of Rs.79,000/- has been recovered
from the credit ledger. If that be so, while calculating the
pre-deposit amount, this amount shall be given due credit.
9. There shall be no order as to costs.
10. 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)
