Rohit Varma vs Assistant Commissioner
2022 Latest Caselaw 2756 Cal

Item No.4.
               IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
                        CIVIL APPELLATE JURISDICTION
                                 APPELLATE SIDE

                                HEARD ON: 12.05.2022

                             DELIVERED ON:12.05.2022

                                       CORAM:

               THE HON'BLE MR. JUSTICE T. S. SIVAGNANAM
                                 AND
           THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA



                                  MAT 456 of 2022
                                        With
                               I.A. No.CAN 1 of 2022

                                 Rohit Varma.
                                   VERSUS
              Assistant Commissioner, Burtola, Kolkata North & Ors.

Appearance:-
Mr. Arya Das                                            .....for the appellant.

Md. T. M. Siddique,
Mr. Soumitra Mukherjee,
Mr. Debasish Ghosh                                      ..   for the respondents.



                                      JUDGMENT

(Judgment of the Court was delivered by T.S. SIVAGNANAM, J.)

1. This intra Court appeal filed by the writ petitioner is

directed against the order dated 15 th March, 2022 in W.P.A.

No.4406 of 2022. The appellant has filed the writ petition

challenging the order passed by the Joint Commissioner,

Commercial Taxes, Posta Bazar, Burtola Charge, Salt Lake,

Kolkata dated 30th November, 2021 on an appeal filed by the

appellant challenging the rejection of the application for

revocation of cancellation of registration under the WBGST Act,

2017. The appellate authority after examining certain facts

came to the conclusion that the appellant did not carry any

business from the declared place and the documents filed by the

appellant in support of the same are not correct and

accordingly, affirmed the cancellation of the registration made

under Section 29(2)(e ) of the Act read with Rule 21 of the

relevant Rules.

2. The learned single Bench by the impugned order held that

the issues raised by the appellant are all disputed questions of

fact, which cannot be gone into in a writ petition. Aggrieved

by such order, the appellant is before us by way of this appeal.

3. We have heard Mr. Arya Das, learned advocate for the

appellant and Mr. Debasish Ghosh, learned advocate appearing for

the respondents.

4. Firstly, we note that as against the order passed by the

Joint Commissioner of Commercial Taxes dated 30th November, 2021,

the appellant has no other alternative remedy provided under the

Act for him to avail questioning the correctness of the said

order. Therefore, the appellant had, in our opinion, rightly

invoked the jurisdiction of this Court under Article 226 of the

Constitution of India. The Court while exercising the

extraordinary jurisdiction is entitled to examine as to whether

the decision making process was proper, whether there was

violation of principles of natural justice or whether the action

was vitiated on account of lack of jurisdiction, etc.

Therefore, to state that the writ petition cannot be entertained

on the ground, which has been mentioned in the impugned order

does not reflect the correct legal position. Therefore, we are

of the clear view that the order passed in the writ petition

requires to be set aside.

5. We are conscious of the fact that the writ petition was

dismissed at the admission stage and no affidavit was called for

from the respondents. Therefore, we have heard the learned

Advocates appearing for the parties on the merits of the matter.

6. The learned Advocate appearing for the appellant submitted

that though the learned Writ Court had briefly noted the factual

position, the legal issue, which had been canvassed by the

appellant before us has not been considered. The legal issue,

which us canvassed before us is on the following grounds.

7. The appellant was granted registration under the provisions

of the West Bengal Value Added Tax Act, 2003 dated 27th August,

2013. The appellant has been enjoying the benefit of such

registration ever since 2013. After coming into force of the

WBGST Act, the licence migrated under the new provisions. On

10th September, 2018, a show cause notice was issued to the

appellant by the Deputy Commissioner of GST calling upon the

appellant to show cause as to why the registration should not be

cancelled as it has been obtained by means of fraud, wilful

mistatement or suppression of facts. The appellant did not

avail the remedy granted and did not appear before the authority

and therefore, the registration was cancelled by order dated 5th

October, 2018. Thereafter, the appellant had filed an

application dated 4th November, 2018 for revocation of the

cancellation of registration, which application was favourably

considered and by an order dated 4th January, 2021, the

registration was restored. Thereafter, within a period of three

days, another show cause notice dated 7 th January, 2021 was

issued on the same ground as the earlier show cause notice dated

10th September, 2018. The appellant submitted the reply.

However, the registration was cancelled by an order dated 13 th

February, 2021 expressing doubt on the documents produced by the

appellant to show that he was carrying on business in the

premises, which has been shown in the registration certificate.

8. Thereafter, the appellant filed an application for

revocation of the said order, which was also dismissed after

which an appeal was preferred before the Joint Commissioner,

which was dismissed.

9. The learned Advocate appearing for the appellant would

submit that the second show cause notice dated 7th January, 2021

was without jurisdiction as for the very same allegation an

earlier show cause notice was issued and thereafter an ex parte

order of cancellation was passed. The appellant had filed an

application for revocation of such order, which was favourably

considered and the registration was restored by order dated 4 th

January, 2021 and having done so, the authority cannot once

again issue another show cause notice for the same set of facts.

10. In our considered view, this legal issue can be left open

for the present as we are satisfied that the procedure adopted

by the authority while cancelling the registration was

thoroughly flawed. Admittedly, when an inspection was conducted

by the officers of the department, one of the person, who

represented to be the receptionist of the building affirmed that

one Mr. Dilip Kumar Agarwal, who was the power of attorney agent

of the appellant, Mr. Rohit Varma, used to come to the premises

and carried on certain business activities. Nevertheless, the

said receptionist could not recognise Mr. Rohit Varma whose

photograph appears to have been shown to the said receptionist.

This report in the submission of the learned Advocate for the

appellant is prima facie proved to show that the business was

carried on in the said premises. In any event, the authority

while cancelling the registration could not have solely relied

upon a statement made by the receptionist of the building and

merely because she could not recognise Mr. Rohit Varma's

photograph could not have been the reason for cancellation. The

proper course that should have been adopted is to issue a notice

directing Mr. Rohit Varma and Mr. Dilip Kumar Agarwal to be

personally present in the office of the respondent and the

landlord of the premises also should have been summoned. If all

the three parties are present, the correct facts will come to

light. Had this procedure been adopted, the truth would have

been established and a proper order could have been passed

either way.

11. In the light of the above, we are of the view that the

matter requires to be remanded to the original authority,

namely, first respondent to redo the matter by conducting a

proper enquiry. In the result, the appeal is allowed. The

order passed in the writ petition is set aside. Consequently,

the writ petition is disposed of by setting aside the order

passed by the Joint Commissioner, respondent no.3 and the matter

is remanded back to the first respondent for conducting a fresh

enquiry. As a result of the same, the order dated 17 th March,

2021 directing rejection of application for revocation of

cancellation is also set aside and the said application is

restored to the file of the first respondent for conducting

fresh enquiry.

12. The first respondent is directed to issue notice to the

proprietor of the appellant, Mr. Rohit Varma, his power of

attorney agent, Mr. Dilip Kumar Agarwal and the landlord of the

premises in which the appellant is stated to have been carrying

on business. The parties shall be directed to appear in person

before the first respondent on 20th June, 2022 at 11.00 A.M. in

the office of the first respondent.

13. It is made clear that the appellant or his power of

attorney agent cannot take any stand that the notice was not

properly served on them as it is in their appeal, this order is

being passed and therefore, the appellant and the power of

attorney agent shall positively appear before the authority on

20th June, 2022.

14. The first respondent is directed to depute one of his

officers to effect personal service of the hearing notice on the

landlord of the building to ensure that the landlord is present

on the said date. On the said date, the first respondent shall

enquire into the matter, receive whatever documents the parties

may produce and pass a reasoned order on merits and in

accordance with law.

15. 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)