Calcutta High Court (Appellete Side)
Kdg Projects Private Limited & Anr vs The Assistant Commissioner Of ... on 21 September, 2022
Item No.6.
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
HEARD ON: 21.09.2022
DELIVERED ON:21.09.2022
CORAM:
THE HON'BLE MR. JUSTICE T. S. SIVAGNANAM
AND
THE HON'BLE MR. JUSTICE SUPRATIM BHATTACHARYA
M.A.T. No.1478 of 2022
With
I.A. No.CAN 1 of 2022
With
I.A. No.CAN 2 of 2022
KDG Projects Private Limited & Anr.
Vs.
The Assistant Commissioner of State Tax, Bureau of Investigation
(North Bengal), Raiganj Zone & Ors.
Appearance:-
Mr. Ankit Kanodia,
Ms. Megha Agarwal,
Mr. Jitesh Sah ..... for the appellants.
Mr. T. M. Siddique,
Mr. Debasish Ghosh,
Mr. D. Sahu ... for the State.
JUDGMENT
(Judgment of the Court was delivered by T.S. SIVAGNANAM, J.)
Re: I.A. CAN 2 of 2022
1. This application has been filed to condone the delay of 16
days in filing the instant appeal.
2. We have heard Mr. Ankit Kanodia, learned counsel appearing
for the appellants and Mr. Debasish Ghosh, learned Advocate for
the State.
3. We are satisfied with the reasons assigned in the affidavit
filed in support of the application. Accordingly, the delay in
filing the instant appeal is condoned.
4. The application being I.A. CAN 2 of 2022 is allowed.
Re: M.A.T. No.1478 of 2022
5. This intra Court appeal is directed against the order dated
25th July, 2022 in W.P.A. No.16044 of 2022 by which the learned
Single Bench has declined to pass any interim order and directed
affidavit-in-opposition be filed by the respondents. Being
aggrieved by such direction and in not granting any interim
protection, the appellants are before us by way of this appeal.
6. We have heard Mr. Ankit Kanodia, learned counsel appearing
for the appellants duly assisted by Ms. Megha Agarwal, learned
Advocate and Mr. Debashish Ghosh, learned Advocate for the
State.
7. The appellants had filed the writ petition challenging the
order passed by the appellate authority, namely, Senior Joint
Commissioner, West Bengal State Tax, Kolkata in an appeal filed
under Section 107(1) of the West Bengal Goods and Services Tax
Act, 2017 (for short, "the Act") dated 30 th November, 2021. The
said appeal was filed against an order passed by the Assistant
Commissioner of State Tax, West Bengal directing the appellants
to pay 100% tax and 100% penalty on the goods, which have been
transported, on the ground that the e-way bill had expired and
48 hours had lapsed. Before the appellate authority, the
appellants contended that it was an unintentional mistake and
due to oversight, the accounts team of the appellants had not
extended the e-way bill. Further, it was pointed out that they
had no intention to evade payment of tax and this would be
evident from the fact that they have raised the invoice along
with the e-way bill. Further, they have made the payment of
full tax on the said invoice. Therefore, it was contended that
there was no mens rea on the part of the appellants or any
attempt to evade payment of tax. The learned appellate
authority by the order impugned in the writ petition has
dismissed the appeal solely on the ground that the e-way bill
was valid up to 22nd January, 2021 and the vehicle, which was
transporting the goods was intercepted on 25th January, 2021 and
by then, the e-way bill had expired. In any event, it is an
admitted position that the entire tax has been remitted by the
appellants. If the order passed by the Assistant Commissioner
of State Tax, West Bengal is to stand confirmed, then it
tantamounts to recovery of 200% tax and 100% penalty and the
respondents /State would not be justified in recovering taxes
twice on the same transaction. Therefore, in our considered
view that the learned appellate authority has to take into
consideration as to whether there was any mala fide intention on
the part of the appellants in not extending the e-way bill and
transporting the goods after the expiry of the e-way bill.
8. The learned Advocate appearing for the appellants would
submit that the transporter had halted the vehicle on 22nd
January, 2021 and on 23rd January, 2021 was declared as a local
holiday and next day, i.e., 24th January, 2021 was a Sunday and
the vehicle commenced its movement on 25 th January, 2021, when it
was intercepted. The learned Advocate would further submit that
the transporter will also file an affidavit in this regard so
that the bona fides are established.
9. In the light of the above, we are of the considered view
that the learned appellate authority should consider the
question as to whether there was any intentional attempt made by
the appellants to evade payment of tax. Since this aspect has
not been considered by the learned appellate authority, we are
constrained to remand the matter to the appellate authority for
fresh consideration.
10. Accordingly, the appeal as well as the writ petition are
disposed of and consequently, the order passed by the learned
appellate authority dated 30th November, 2021 is set aside and
the appeal stands restored to the file of the appellate
authority to be decided on merits and in accordance with law.
The appellants are directed to obtain an affidavit from the
transporter setting out the facts and if necessary the appellate
authority can also call for details from the transporter and
after hearing the appellants, a fresh decision be taken on
merits and in accordance with law.
11. This direction shall be complied with within a period of 8
weeks from the date of receipt of the server copy of this
judgment and order.
12. With the above directions, the appeal and the connected
application being CAN 1 of 2022 are disposed of.
13. No order as to costs.
14. 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)
