Calcutta High Court (Appellete Side)
Assistant Commissioner Of State ... vs Lgw Industries Limited & Ors on 16 September, 2022
Item no. 11+12
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice T.S. Sivagnanam
And
The Hon'ble Justice Supratim Bhattacharya
MAT 855 of 2022
with
IA No. CAN 1 of 2022
IA No. CAN 2 of 2022
Assistant Commissioner of State Tax, ITC Investigation Unit
vs.
LGW Industries Limited & ors.
With
MAT 856 of 2022
with
IA No. CAN 1 of 2022
IA No. CAN 2 of 2022
Joint Commissioner of State Tax, Large Tax Payer Unit,
Corporate Division
vs.
Raj Metal Industries & ors.
Appearance:
For the Appellants : Mr. A. Ray, ld. G.P.
(State) Md. T. M. Siddiqui, ld. A.G.P.
Mr. D. Ghosh
Mr. S. Mukherjee
Mr. N. Chatterjee
For the Respondents : Mr. Vinay Shraff
Writ petitioners Ms. Priya Sarah Paul
Mr. Kaushal Agarwal
Heard on : 16.09.2022
Judgment on : 16.09.2022
T.S. Sivagnanam J.:
We have perused the affidavit filed in support of the application
for condonation of delay and we are satisfied that sufficient cause have been
shown in preferring the instant appeals. Hence, the delay is condoned and the
application for condonation of delay is allowed.
Heard at length learned counsel for the parties.
These intra court appeals are directed against a common
judgment and order passed by the learned Single Judge dated 13.12.2021
though the respondents/writ petitioners had sought for a larger relief in the
writ petition mainly for issuance of writ of declaration to declare Section 16(2)
(c) of the CGST Act/WBGST Act as unconstitutional and, in the event, the
Court holds the provision to be constitutional to read over how the provision by
holding that input tax credit will be denied only where the purchasers are
proved to be collusive and in the nature of sham transaction. The
respondents/writ petitioners also sought for quashing of the memos dated
28.08.2019 and 11.11.2019 though such larger relief were sought for before
the learned writ court direction issued by the learned writ court, in our
considered view, is a very innocuous direction.
Learned Government counsel for the appellant would submit that
the writ petition itself was premature and certain other writ petitions were
pending where constitutional validity of the said provision namely Section 16(2)
(c) has been challenged and is still pending before the learned Single Judge.
Therefore, it is submission of the learned Government counsel that the State
has preferred these appeals on the said grounds.
Learned counsel for the respondents/writ petitioners submitted
that the reason why the other writ petitions have been segregated and kept
pending is on account of fact situation of those cases and those writ petitions
which were disposed of by the impugned order. The only reason for declining
the input tax credit was on the ground that the selling dealers' registration was
cancelled with retrospective effect. Be that as it may, the larger relief sought
for by the respondents/writ petitioners mainly writ of declaration has not been
granted by the learned Single Judge. The respondents/writ petitioners are not
on appeal as against the said finding.
In such circumstances, we are of the view that the directions
issued by the learned Single Judge were not only in the interest of the
respondents/writ petitioners, but also would safeguard the interest of the
revenue. We say so, because the matter has been sent back to the appellant
authority to enable verification of documents, correspondences exchanged
between the Department and the writ petitioner which have been referred to as
memos, we find that the actual adjudication of the dispute has not taken place
which is required to be done before an order is passed either accepting or
denying the input tax credit.
Therefore, we are of the considered view that no interference is
called for to the direction issued by the learned Single Judge.
In the light of the above, both the appeals being MAT 855 of 2022
and MAT 856 of 2022 are dismissed with a direction to the respondents/writ
petitioners to submit one more set of documents which they seek to rely upon
to the concerned appellant authority within a period of two weeks from the
date of receipt of the server copy of this order and on receipt of these
documents, the concerned authority shall afford an opportunity of personal
hearing to the authorized representative of the respondents/writ petitioners
and peruse the documents, take note of the directions issued by the learned
Single Judge and proceed to act on merits and in accordance with law and
conclude the proceedings as expeditiously as possible preferably within a
period of four weeks from the date on which the personal hearing is concluded.
It is made clear that neither the learned writ court nor this Court
has adjudicated the merits of the case and it will be open to the
respondents/writ petitioners to canvass all the issues both factual and legal
before the concerned authority.
Consequently, all the connected applications to both the appeals
stand dismissed.
No costs.
(T. S. Sivagnanam, J.)
(Supratim Bhattacharya, J.)
Raja Pal/Amitava Nag(AR. CT.)
