Calcutta High Court (Appellete Side)
Swarupa Ghosh vs The Assistant Commissioner Of ... on 22 September, 2022
Item No.7.
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
HEARD ON: 22.09.2022
DELIVERED ON:22.09.2022
CORAM:
THE HON'BLE MR. JUSTICE T. S. SIVAGNANAM
AND
THE HON'BLE MR. JUSTICE SUPRATIM BHATTACHARYA
M.A.T. No.791 of 2022
With
I.A. No.CAN 1 of 2022
Swarupa Ghosh.
Vs.
The Assistant Commissioner of State Tax, Bowbazar Charge & Ors.
Appearance:-
Mr. Saurabh Sankar Sengupta,
Mr. Indranil Biswas ..... for the appellant.
Mr. T. M. Siddique,
Mr. Debasish Ghosh,
Mr. V. Kothari ... for the State.
2
JUDGMENT
(Judgment of the Court was delivered by T.S. SIVAGNANAM, J.)
1. Certified copy of the impugned order dated 11 th May, 2022
filed by Mr. Sengupta, learned Advocate for the appellant, is
placed on record.
2. This intra Court appeal is directed against the order dated
11th May, 2022 passed in W.P.A. No.7816 of 2022. By the said
order, the writ petition filed by the appellant challenging the
rejection of the revocation application dated 21 st March, 2022
and all other earlier proceedings were dismissed on the ground
that an appellate remedy is available under the Act. Being
aggrieved by such order, the appellant is before us by way of
filing this appeal.
3. We have heard Mr. Saurabh Sankar Sengupta, learned counsel
appearing for the appellant and Mr. Debasish Ghosh, learned
Advocate for the State.
4. The case had a chequered history commencing from August,
2021 when the first show cause notice was issued on 23 rd August,
2021 proposing to cancel the registration on the ground that
there is a contravention of Section 29(12)(a) of the West Bengal
Goods and Services Tax Act, 2017 (for short, "the Act"). The
appellant / petitioner submitted her reply and thereafter an
order of cancellation was passed on 1st September, 2021, which,
according to the appellant, was devoid of reasons. The
appellant filed an application for revocation of the said order
and by an order dated 3rd November, 2021, the registration was
restored. At that point of time, the appellant proposed to
shift his place of business and therefore, submitted an
application on 3rd November, 2021 for cancellation of the
registration. Various documents were sought for by the
department. However, by order dated 25th November, 2021, the
authority rejected the application filed by the appellant for
cancellation of registration as balance sheet and profit and
loss account was not submitted as per the notice. On the same
date, i.e. on 25th November, 2021, the second notice for
cancellation of the registration was issued on the allegation
that the appellant had obtained registration by means of fraud
and willful misstatement or suppression of facts. However, no
adverse report was appended to the said show cause notice.
5. The appellant submitted her reply on 2 nd December, 2021
requesting that the necessary documents should be provided to
the appellant to enable her to submit her appropriate rebuttal.
Therefore, the appellant had also submitted written submissions
on 2nd December, 2021 to the same effect. On the hearing fixed
on 7th December, 2021, the appellant appeared but the authority
failed to provide any document; however, dropped the proceedings
for cancellation of registration. Thereafter, the appellant
filed the application for cancellation of the registration,
which was the second attempt made by the appellant. The
authority issued show cause notice calling upon the appellant to
provide various details. Written submissions were made to the
said show cause notice on 13th December, 2021 and on 20th
December, 2021, the registration was cancelled.
6. According to the appellant, the said order of cancellation
was passed in the midnight. Thereafter on 21st December, 2021
once again, during the midnight, the appellant received another
show cause notice for cancellation of registration for
contravention of Section 29(2)(a) of the Act.
7. The appellant would state that though the said notice
states an adverse report is separately attached, but no
attachment was there to the said notice. This was pointed out
by the appellant by representation dated 27th December, 2021.
Thereafter, on 28th December, 2021, an adverse report was
received and the appellant sent an email at 2.47 p.m. requesting
for time to submit reply. Thereafter, without affording any
opportunity, the registration was cancelled on the very same
date, i.e., on 28th December, 2021.
8. The appellant filed an application for revocation of such
an order on 17th January, 2022. Thereafter, a show cause notice
was issued on 16th February, 2022 for which a detailed reply was
submitted by the appellant on 19th February, 2022. However, the
said application was rejected by an order dated 21 st March, 2022.
According to the appellant, the reasons stated therein was that
the order has been passed without taking into consideration any
of the grounds raised by the appellant and without adequate
opportunity. This order dated 21 st March, 2022 and the earlier
orders including the show cause notices were impugned in the
writ petition. The learned Single Bench had dismissed the writ
petition on the ground of availability of alternative remedy.
9. Upon perusal of the materials placed before us in this
appeal, we find that the order passed by the authority
cancelling the application for revocation is devoid of reasons.
None of the grounds raised by the appellant has been dealt with.
It is not clear as to why the department has been dragging the
appellant for such a long period, i.e. from August, 2021. If,
according to the respondent, there is any adverse material, then
a proper show cause notice should have been given to the
appellant and her objection should have been invited and further
affording an opportunity of personal hearing, a speaking order
should have been passed.
10. It is high time that the Commissioner of Commercial Taxes
takes note of the manner in which the subordinate officers have
been dealing with cases, more particularly matters concerning
cancellation of registration and it would augur well to conduct
an orientation programme to enable to the officers to be
sensitized as to how and on what manner the proceedings should
be initiated and how it should be dealt with and how speaking
order should be passed. Since the enactment under which they
are functioning is a new enactment, the officers are required to
be sensitized on this issue, for which purpose a copy of this
order shall be placed before the Commissioner of Commercial
Taxes, West Bengal by the learned Government counsel appearing
for the respondents.
11. As we are satisfied that in the instant case there has been
total violation of principles of natural justice, the order of
rejection of the revocation application is a non-speaking order
without considering the vital facts, the Court is inclined to
set aside such an order.
12. For the above reasons, the appeal is allowed.
Consequently, the order passed in the writ petition is set aside
and the writ petition is allowed and the order of rejection of
the application for revocation dated 21st March, 2021 is set
aside and the matter is remanded to the original authority.
13. The original authority is directed to issue a comprehensive
show cause notice to the appellant clearly mentioning as to what
is the allegation against the appellant. The allegations so
made in the show cause notice should be duly supported by
documents or other evidence or material, copies of which should
be appended along with the show cause notice. The appellant
should be granted not less than 15 days' time to submit her
reply.
14. Thereafter, the authority shall afford an opportunity of
personal hearing to the appellant or her authorised
representative, hear the submissions and take note of the
documents and other details, which the appellant may furnish and
thereafter proceed to pass a speaking order on merit and in
accordance with law. Such an order shall be passed not later
than 10 days from the date on which the personal hearing is
concluded.
15. With the above directions, the appeal and the connected
application being CAN 1 of 2022 are disposed of.
16. No order as to costs.
17. 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)
