Calcutta High Court (Appellete Side)
M/S. Ramprasad Gangaprasad & Ors vs Assistant Commissioner Of State ... on 27 September, 2022
Item No.12.
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
HEARD ON: 27.09.2022
DELIVERED ON:27.09.2022
CORAM:
THE HON'BLE MR. JUSTICE T. S. SIVAGNANAM
AND
THE HON'BLE MR. JUSTICE SUPRATIM BHATTACHARYA
M.A.T. 1192 of 2022
With
I.A. No.CAN 1 of 2022
M/s. Ramprasad Gangaprasad & Ors.
Vs.
Assistant Commissioner of State Tax, Beadon Street Charge & Ors.
Appearance:-
Mr. Siddhartha Sankar Sengupta,
Mr. Sumit Ghosh ... for the appellant.
Mr. T. M. Siddique,
Mr. Debasish Ghosh,
Mr. D. Sahu .... for the State/respondents.
JUDGMENT
(Judgment of the Court was delivered by T.S. SIVAGNANAM, J.)
1. This intra Court appeal at the instance of the writ
petitioners is directed against the order dated 4 th July, 2022 in
W.P.A. No.11342 of 2022. This is the second round of
litigation. Earlier the appellants had approached this Court
and filed a writ petition challenging a show cause notice
contending that the authority does not have jurisdiction to
issue the show cause notice and consequently, the demand, which
was raised on the appellants dated 23rd February, 2021 was
illegal. The writ petition being W.P.A. No.20136 of 2021 was
dismissed by order dated 21st December, 2021 against which an
intra-Court appeal being MAT 95 of 2022 was filed, which was
disposed of by an order dated 22 nd February, 2022. The operative
portion of the same reads as follows:-
"We find that in the reply given by the appellants dated
1.10.2021 the contentions have not been framed properly and
legally. We are of the considered view that the appellants are
entitled to one more opportunity to place the entire factual and
legal submissions which the authority should consider and
thereafter take a decision in accordance with law by passing a
speaking order. For such reasons, the order of demand dated
23.02.2021 shall be treated as additional show cause notice and
the appellants are directed to submit their additional reply within
two weeks from the date of receipt of server copy of this order. On
receipt of the same the concerned authority shall afford an
opportunity of personal hearing to the appellants and adjudicate
the matter and pass a reasoned order on merit in accordance with
law. However, if the appellants raise the question of jurisdiction,
the concerned authority should decide the same while deciding the
other issues on merit.
In the light of above, the demand, which has been raised
on the appellants, shall be kept in abeyance for a period of four
weeks from the date of receipt of the server copy of this order
within which the adjudication shall be completed.
Needless to mention the appellants shall extend full
cooperation with the proceedings without seeking unnecessary
adjournments."
2. Pursuant to the above direction, it appears that the
appellants had submitted their additional explanation and the
authority viz., the Assistant Commissioner of State Tax has
passed the order dated 6th April, 2022, which was impugned in the
writ petition. The learned Single Bench dismissed the writ
petition on the ground of availability of alternative remedy.
3. The learned Advocate appearing for the appellants would
strenuously contend that the entire proceedings is ab initio
void and it is without jurisdiction.
4. In our considered view, the issue relating to the
jurisdiction of the authority can very well be raised before the
appellate authority and it is the mixed question of fact and
law, which can be canvassed by the appellants before the
appellate authority. Therefore, we are of the view that the
learned Single Bench rightly refused to entertain the writ
petition on the ground of availability of alternative remedy,
which, in our view, is not only efficacious but also effective
as well.
5. The learned Advocate appearing for the appellants submitted
that during the pendency of the proceedings, about Rs.29 lakhs
has been recovered from the appellants' bank account not only to
cover the period with the present writ petition but also in the
connected matter for the subsequent period, which is subject
matter of MAT 1191 of 2022.
6. In the light of the above, while dismissing the appeal and
affirming the order passed by the learned Writ Court, we direct
the appellants to file the appeal before the concerned appellate
authority in physical form within a period of five weeks from
the date of receipt of the server copy of this judgment and
order and raise all contentions before the appellate authority.
7. Till such time, no further recovery shall be made from the
appellants and the amount of Rs.29 lakhs, which was recovered
from the appellants' bank account shall be reckoned towards the
pre-deposit, which is mandatorily to be made while filing the
appeal petition. The appeal shall be heard and disposed of on
merit and in accordance with law after affording an opportunity
of personal hearing to the appellants or their authorised
representative.
8. The appellants are granted liberty to move before the
appellate authority by way of an interlocutory application to
lift the lien created on the appellants' bank account by the
original authority. Needless to state that if the appeal is not
filed within the time permitted, the benefit of this judgment
and order will not enure in favour of the appellants.
9. There shall be 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)
