Santosh Kumar Gupta vs The Assistant Commissioner Of ...
2022 Latest Caselaw 3961 Cal

Form No. J(2)

            IN THE HIGH COURT AT CALCUTTA
                    Constitutional Writ Jurisdiction
                            Appellate Side

Present:
The Hon'ble Justice T.S.Sivagnanam
              And
The Hon'ble Justice Bivas Pattanayak


                        M.A.T. 651 of 2022
                                 with
                         IA no. CAN 1 of 2022

                     Santosh Kumar Gupta
                              Vs.
            The Assistant Commissioner of Revenue,
                      Howrah Zone & Ors.


For the Appellant              Ms. Rita Mukherjee
                               Mr. Abhijat Das

For the Respondents            Mr.   Anirban Ray, GP

Mr. T.M.Siddiqui Mr. D.Ghosh Mr. N.Chatterjee

Heard on : 05.07.2022.

Judgment on         : 05.07.2022.


T.S.Sivagnanam:

This intra Court appeal by the appellant is directed against the

order dated 14.03.2022 in W.P.A. 3320 of 2022.

Learned advocate appearing for the appellant sought leave of

this Court to delete ground XIV in pages 6 and 7 of the Memorandum

of Appeal.

Leave is granted. Accordingly, ground XIV stands struck of

from the Memorandum of Appeal.

The appellant filed the writ petition challenging the show

cause notice dated December 21, 2021 and the consequential order of

adjudication dated January 27, 2022. The ground of challenge is that

the show cause notice was only an extract of the show cause notice

uploaded in the website and the same was the case with regard to the

adjudication order. The appellant further contended that there has

been serious violation of principles of natural justice inasmuch as the

appellant was not granted adequate opportunity of putting forth their

submissions as the full text of the show cause notice was not given.

When the writ petition was heard, the learned Single Bench

appears to have issued direction to the learned Government Pleader to

produce the original file and, thereafter, the full text of the order is

sought to have been served upon the learned advocate appearing for

the appellant during the course of hearing. Thereafter, the learned

Single Bench opined that the appellant should avail alternate remedy

available under the relevant statute and the writ petition came to be

dismissed. Aggrieved by such order, the appellant is before us.

After we have elaborately heard learned advocates for the

parties, we find that the case of the appellant stands substantiated.

The appellant has been served with the summary of show cause notice

and not the full text of the show cause notice. On receipt of the

summary of the show cause notice, the appellant sent a

representation dated 7th January, 2022 in which he had pointed out

that the summary alone has been received and that he had

simultaneously denied the allegation as contained in the summary of

the show cause notice.

Further, the appellant contended that though the summary of

the show cause notice states that the detail notice is enclosed as

attachment, the appellant has not received any such attachment.

The appellant also prayed for an opportunity of hearing before

any adverse order has been passed. The appellant also states certain

other information upon the merits of the matter. In page 76 of the stay

application, we find the order passed by the adjudicating authority,

which in the opinion of the learned Writ Court was the full text of the

order. On going through the said order, we find it is the order

especially containing the serial number and date which is mentioned

as 10th December 2021. However, the adjudication order is said to be

dated 27th January 2022. The order states that due to technical

problem in the system, the order was unable to be uploaded while

issuing the order dated 27th January 2022.

Thus, we find that at both stages, the appellant had not been

granted adequate opportunity to put forth the submission.

Though there may be adequate glitches in uploading the order

or furnishing the copies of the full text of the notice, yet the

department should ensure that an opportunity granted to the

assessee is not reduced to mere formality and the opportunity should

be an effective opportunity so that the principles of fairness is

complied with.

As we are satisfied that the principles of natural justice had

been violated even at the stage of commencement of the proceeding,

we are inclined to interfere with the order of the learned Single Bench.

The appeal is accordingly allowed. The order in the writ

petition is set aside. Consequently, the orders dated 10 th December

2021 and 27th January 2022 are set aside and the matter is remanded

to the appropriate respondent with a direction to issue fresh show

cause notice containing full text of the allegation against the appellant

and the appellant be granted reasonable time to submit his reply to

the show cause notice after providing an opportunity of personal

physical or virtual hearing and fresh orders be passed on merit and in

accordance with law.

Since, we remand back the matter on the ground of principles

of natural justice, the appellant is precluded from raising the issue of

limitation before the concerned authority.

Consequently, the connected application stands disposed of.

(T.S.Sivagnanam, J.)

(Bivas Pattanayak, J.)

Saswata/Amitava Nag (AR CT.)