M/S. Devanshi Plyboard ... vs Deputy Commissioner State Tax
2022 Latest Caselaw 7107 Cal

Item no. 13


              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 1493 of 2022
                                    with
                            IA No. CAN 1 of 2022
                            IA No. CAN 2 of 2022

          M/s. Devanshi Plyboard Industries Private Limited
                                  vs.
        Deputy Commissioner State Tax, Goods & Services Tax,
         Bureau of Investigation (South Bengal) & Ors.


Appearance:
For the Appellant       :   Mr. Rituraj Chakraborty

For the respondent      : Md. T. M. Siddiqui, ld. A.G.P.

Mr. N. Chatterjee

Heard on : 28.09.2022

Judgment on : 28.09.2022

T.S. Sivagnanam J.:

This intra-Court appeal is directed against the order dated

25.08.2022 passed in WPA 18707 of 2022 by which the learned writ

court dismissed the writ petition filed by the appellant. Challenging the

order passed by the appellate authority, namely the Senior Joint

Commissioner, North Bengal, the appellant has preferred the writ

petition. The appeal was dismissed by the said order. The learned

Single Judge was of the view that the present round of litigation is

second round of litigation and the order being a speaking order, no

interference is called for.

Learned counsel for the appellant would submit that an adverse

report had been relied upon by the appellate authority while rejecting

the appeal petition and such adverse report was not furnished to the

appellant inspite of a representation dated 19.07.2022. Further, it is

submitted that no effective opportunity of hearing was granted to the

appellant by the appellate authority.

Learned Additional Government Pleader appearing for the State

submits that the appeal was heard on three days namely on 20.07.2022;

22.07.2022 and 27.07.2022 and after affording sufficient opportunity of

hearing, the appellate authority has passed a speaking order.

Admittedly, as against the impugned order as on date there is no other

remedy available under the Act since the Tribunal has not been

constituted. Therefore, the appellant had to necessarily approach the

learned writ court for challenging the said order. In our view, when

such is the position, the learned writ court would have to examine as to

the correctness of the order passed by the appellate authority as the writ

petition is the first judicial forum, which will test the correctness of the

order passed by the statutory appellate authority. In any event, we are

of the view that if there is an adverse report drawing certain conclusions

against the appellant, then such material should be furnished to the

appellant so as to enable to put forth the contentions and place all

relevant facts. It appears that the representation given to the appellate

authority on 19.07.2022 has not been considered and the copy of the

adverse report has not been furnished.

Thus, we are of the view that one more opportunity can be

granted to the appellant with a direction to the appellate authority to

furnish the copy of the adverse report but however such direction can be

given excepting two conditions.

It is seen that at the time of filing of the appeal, the appellant has

deposited 10% of the disputed tax as per Form GST DRC-07 and the

summary of the order dated 13.09.2019, the total tax demanded both

CGST and SGST, comes to the tune of Rs. 50 lacs. Therefore, we are of

the view that the appellant should be directed to pay a portion of the

liability to be entitled to fresh opportunity of hearing. The appellant is

also directed to pay the concerned authority a sum of Rs. 15 lacs within

a period of six weeks from the date of receipt of the server copy of this

order. If this condition is complied with, the appellant shall be

furnished with a copy of the adverse report and on receipt of such

report, the appellant shall submit a further representation and raise an

additional ground which shall be considered by the appellate authority

on merits and in accordance with law uninfluenced by any of the

observations, which has been made by the appellate authority in the

order dated 07.10.2019.

We make it clear that the assessee should cooperate with the

proceedings before the appellate authority and shall not pray for any

further adjournment.

With the above observations, the instant appeal stands disposed

of. Consequently, the connected application also stands disposed of.

No costs.

(T. S. Sivagnanam, J.)

(Supratim Bhattacharya, J.)

Raja Pal/Amitava (AR. CT.)