Calcutta High Court (Appellete Side)
Shri Kaushal Kadel vs State Of West Bengal & Anr on 8 September, 2022
Item No.7 & Supple.
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
HEARD ON: 08.09.2022
DELIVERED ON:08.09.2022
CORAM:
THE HON'BLE MR. JUSTICE T. S. SIVAGNANAM
AND
THE HON'BLE MR. JUSTICE SUPRATIM BHATTACHARYA
M.A.T. No.1169 of 2021
With
I.A. No.CAN 1 of 2021
with
I.A. No.CAN 2 of 2022
Shri Kaushal Kadel.
Vs.
State of West Bengal & Anr.
And
M.A.T. 1170 of 2021
With
I.A. No. CAN 1 of 2021
With
I.A. No. CAN 2 of 2022
Shri Kaushal Kadel.
Vs.
State of West Bengal & anr.
Appearance:-
Mr. Nilotpal Chowdhury ... for the appellant.
Mr. Anirban Ray, Ld. G. P.,
Mr. Debasish Ghosh,
Mr. V. Kothari ..... for the State
2
JUDGMENT
(Judgment of the Court was delivered by T.S. SIVAGNANAM, J.)
1. These intra-Court appeals at the instance of the writ
petitioner is directed against the common order dated 22 nd
September, 2021 passed in W.P.A. No.11708 of 2021 and W.P.A.
No.11710 of 2021. In the said writ petitions, the appellant had
challenged the adjudication order passed by the respondent
authority primarily on the ground of violation of principles of
natural justice that the full text of the order was not
communicated to the appellant and it is a non-speaking order.
During the course of hearing of the writ petitions, copy of the
speaking order dated 19th February, 2021 passed under Section 74
(9) of the West Bengal G.S.T. Act, 2017 (for short, "the Act")
was served on the appellant. Since the appellant cannot file an
online appeal before the first appellate authority, direction
has been issued by the learned writ Court to the appellant to
file the statutory appeal as a hard copy with a direction to the
appellate authority to consider and dispose of the appeal. Not
satisfied with such direction, the appellant has filed these
appeals.
2. We have heard Mr. Nilotpal Chowdhury, learned Advocate for
the appellant and Mr. Debasish Ghosh, learned standing counsel
for the State.
3. On perusal of the order dated 19th February, 2021 passed
under Section 74(9) of the Act, we find that the reply given by
the appellant dated 3rd March, 2020 has been referred to by the
authority. However, on perusal of the so-called reply, we find
that it is bereft of any particular and all that the appellant
pleads is his innocence and that he has not done any fraudulent
activities or any illegal business and his business is legal and
the refund granted was correct. This is not the manner in which
the reply should be filed to a show-cause notice wherein the
allegation made against the appellant is as follows:-
"(b) Ground: M/s. Richmond Industrial exported
goods after pouring from M/s Neelam
Products(GSTIN 19ACDQPA7741Q1ZT) &n M/s P.S.
Commercial (GSTIN 19DAEPS947IN1ZN) and who were
found non-existent. None of above three
registered taxable persons turned up in
response to repeated summons by Directorate of
Revenue Intelligence, Govt. of India, Kolkata
Zonal Unit. M/s. Richmond Industrial exported
tobacco rejects fraudulently declaring highly
inflated value to obtain higher amount of GST
refund."
4. The learned Government counsel submitted that the appellant
would be entitled to canvass all issues before the first
appellate authority and therefore, the learned single Bench was
right in directing a statutory appeal to be filed.
5. It is no doubt true that an appeal is a continuation of
original proceeding but nevertheless an opportunity before the
original authority can never be equated to an opportunity before
the first appellate authority. Therefore, we are of the view
that the appellant can be granted one more opportunity to submit
a proper reply and the adjudicating authority can decide the
matter after affording an opportunity of personal hearing to the
appellant, which appears to have not been extended before the
order dated 19th February, 2021 was passed. However, for such
reason, we are not inclined to set aside the order dated 19 th
February, 2021 but would direct the said order to be treated as
an additional show-cause notice so that the appellant can file
his reply and matter can be heard and decided on merits.
6. In the light of the above, the appeals are disposed of
modifying the direction issued by the learned single Bench by
directing the appellant to treat the order dated 19 th February,
2021 as an additional show-cause notice and submit his objection
within two weeks from the date of receipt of server copy of this
judgment and order.
7. On receipt of the objection/reply, the appropriate
authority namely the Deputy Commissioner of State Tax shall
afford an opportunity of personal hearing to the authorised
representative of the appellant and pass fresh orders on merits
and in accordance with law without being in an manner influenced
by the conclusion arrived at in the order dated 19 th February,
2021, which we have directed to be construed as an additional
show-cause notice.
8. The said authority shall conclude the proceeding and pass a
speaking order on merits and in accordance with law as
expeditiously as possible but preferably within a period of six
weeks from the date on which the personal hearing is concluded.
9. 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,
(SUPRATIM BHATTACHARYA, J.)
NAREN/PALLAB(AR.C)
