Calcutta High Court (Appellete Side)
Lohia Jute Press Pvt. Ltd vs State Of West Bengal & Ors on 12 July, 2022
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. 837 of 2022
with
IA no. CAN 1 of 2022
Lohia Jute Press Pvt. Ltd.
Vs.
State Of West Bengal & Ors.
For the Appellant Mr. Sweta Mukherjee,
Mr. A. Sarkar,
For the State Mr. Anirban. Ray, Ld. GP,
Mr. T. M. Siddiqui, Ld. AGP,
Mr. D. Ghosh,
Mr. S. Mukherjee,
Mr. N. Chatterjee,
Heard on : 12.07.2022.
Judgment on : 12.07.2022.
T.S.Sivagnanam, J.
By consent of the parties the appeal and the application are taken up
for hearing together.
We have heard Ms. Sweta Mukherjee, learned Advocate for the
appellant and Mr. Nilotpal Chatterjee, learned Advocate, for the State
respondents.
Identical impugned order was challenged by the appellant in MAT
442 of 2022 and by an order dated 22.04.2022 we have granted interim stay
and allowed the appeal and directed the suspension of the garnishee order.
The said order reads as follows:
"This intra-Court appeal is directed against the
order dated 24.03.2022 passed in WPA 5012 of 2022
refusing to pass an ad interim order as sought for by the
appellant/writ petitioner. The writ petition was filed
challenging the order passed by the authority under West
Bengal Value Added Tax Act, 2003 (WBVAT) dated
27.06.2013, 10.07.2014 and 26.09.2019. These orders
are the orders passed by the assessing officer, the
appellate authority and the revisional authority
respectively.
The issue involved in this writ petition is whether
the activity done by the appellant is sovereign function as
they are engaged in printing of electoral photo identity
cards pursuant to the contract given by the Election
Commission of India. The present assessment pertains to
supply of printed photo identity cards to the State of
Uttarakhand. The appellant had placed reliance on the
communication sent by the Chief Electoral Officer,
Uttarakhand stating that no sales tax is chargeable under
the rules of Printing of Electoral Photo Identity Cards and
the appellant should not include any sales tax while
submitting bill to the Chief Electoral Officer, Uttarakhand.
Based on such document the appellant has not collected
sales tax and, however, in the assessment proceeding the
assessing officer held that the activity is one of works
contract as there is deemed sale involved and accordingly
completed the assessment. Aggrieved by that the
appellant approached the appellate authority, who was
also of the view that the reference to the circulars by the
appellant was not tenable as those circulars and letters
were issued during the period when WBVAT Act was not
in force.
Prima facie we are of the view that the correct
approach as to how such communication to be interpreted
as the contents of the communication is more important
and germane. The petitioner/appellant has also placed
reliance on the decision of West Bengal Commercial Taxes
Appellate and Revisional Board in Revision VAT Cases
No.1249 of 2010-11 and 1250 of 2010-11 wherein the
stand of the appellant was accepted insofar as the supply
of photo identity cards done by them dated 15.10.2015.
On revision before the revisional authority the appellant
was unsuccessful.
Considering the facts and circumstances of the
case as well as the orders passed by the revisional Court
dated 15.10.2015 as well as the letters given by the Chief
Electoral Officer, we are of the view that the appellant has
made out a prima facie case for grant of interim order. If
interim orders are not granted to the appellant, the
respondents would proceed to recover the tax levied on
the appellant and this will lead to multiplicity of
proceedings. Therefore the balance of convenience is also
in favour of the appellant and that apart hardship would
be caused to the appellant as the findings in the
impugned proceeding may have a cascading effect on the
appellant's activities as they are carrying on printing
activity for several States in the country. That apart, the
Chief Electoral Officer has given a letter on 25.01.1995
stating that no sales tax is chargeable under the rules for
Photo Identity Card which is printed and supplied by the
appellant.
Considering all these facts, we are of the view
that the orders which are impugned in the writ petition
should not be given effect to and shall remain stayed till
the disposal of the writ petition. We make it clear that the
observations made by us in this order will not in any
manner prejudice the rights and contentions of the
respondents which they may raise in the affidavit-in-
opposition to the writ petition and the observations made
by us are only to support the conclusion arrived at by us
that the appellants have made out a case for grant of
interim order in pending writ petition.
Hence, the appeal and the application stand
allowed. In the light of the above, the Garnishee Order
shall remain suspended and consequently, the respondent
authorities are directed to lift the attachment of bank
account within three days from receipt of the server copy
of this judgment by duly intimating the bank to do so.
As requested by the learned counsel for the
State, time for filing affidavit-in-opposition is extended by
six weeks from date. Reply, if any, be filed within three
weeks thereafter."
There is no distinguishing feature in the case on hand and therefore
the above order can be applied to the present appeal as well.
Hence, the appeal and the application stand allowed and the
garnishee order shall remain suspended and the respondent authorities are
directed to lift the attachment of the bank account within three days from the
date of receipt of the server copy of this judgment by duly intimating the
respondent bank to do so. The state respondent shall file affidavit in
opposition within four weeks from date. Reply, if any, within three weeks
thereafter.
List the writ petition along with WPA 5012 of 2022.
The appeal along with the connected application is, accordingly,
disposed of.
(Bivas Pattanayak, J.) (T.S.Sivagnanam, J.)
KOLE
Assistant Registrar (Court)
