Sudipta Mahanta vs Tax Recovery Officer
2022 Latest Caselaw 4053 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. 821 of 2022
                                  with
                          IA no. CAN 1 of 2022

                           Sudipta Mahanta
                                  Vs.
                    Tax Recovery Officer, Sales Tax,
                         Raiganj Circle & Ors.

For the Appellant              Mr. Himangshu Kr. Ray
                               Mr. Abhijat Das

For the State                  Mr. Anirban Ray, GP
                               Mr. S.Mukherjee
                               Mr. D.Ghosh

For the respondent no.6        Mr. Baidurya Ghosal
                               Ms. Avipsa Dutta Roy

Heard on            : 07.07.2022.

Judgment on         : 07.07.2022.


T.S.Sivagnanam, J.

This intra Court appeal is directed against the order dated 19th

May 2022 in W.P.A. no. 8441 of 2022. The impugned order is not a

final order but the appellant is aggrieved on the ground that the

learned single Bench did not grant any interim orders while directing

the respondents to file affidavit-in-opposition.

After we have elaborately heard Mr. Himangshu Kr. Ray,

learned advocate for the appellant and the learned Government

advocate, we are of the view that the order in the writ petition being

the assessment order under the provisions of West Bengal Value

Added Services Act, 2003 (for short "the Act"), the appellant should

avail the alternate remedy provided for under the Act against such

assessment order. We make such observation because facts need to

be adjudicated which cannot be done in a writ proceeding and the

appropriate procedure to be adopted is to prefer an appeal.

Learned advocate appearing for the appellant, though had

raised various grounds touching upon the merits of the matter, we

cannot adjudicate those grounds in this appeal as the scope of this

appeal is as to the correctness of the order passed by the learned

single Bench refusing to grant an interim order till the affidavit-in-

opposition is filed. Thus, considering the facts and circumstances of

the case, we are of the view that no useful purpose will be served by

keeping the writ petition pending as the appellant should avail the

alternate remedy provided for under the Act, as such the remedy is

not only effective but efficacious as well.

In the result, the writ petition is disposed of by directing the

appellant/writ petitioner to approach the appellate authority by

effecting a pre-deposit of 15 per cent of the disputed tax and such

deposit shall be made within two weeks from the date of receipt of the

server copy of this order. On such deposit, the appellant shall be

entitled to file an appeal before the appellate authority who shall

entertain the appellant without rejecting the same on the ground of

limitation.

Consequently, the recovery proceeding is required to be kept

in abeyance. However, we make it clear that the attachment effected

on the bank account of the appellant/writ petitioner shall continue till

the appellant/writ petitioner's deposit of 15 per cent of the disputed

tax. However, in the interregnum, the department shall not effect any

recovery from the appellant's bank account.

Accordingly, the appeal being M.A.T. 821 of 2022 along with

the application being IA no. CAN 1 of 2022 is disposed of.

      (Bivas Pattanayak, J.)                             (T.S.Sivagnanam, J.)




Saswata
Assistant Registrar (Court)