Calcutta High Court
M/S. Jiten Engineering Works vs Union Of India And Ors on 28 February, 2023
OD - 5
ORDER SHEET
IA GA 1 2023
WPO/2004/2022
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
M/S. JITEN ENGINEERING WORKS
VS
UNION OF INDIA AND ORS
BEFORE:
The Hon'ble JUSTICE MD. NIZAMUDDIN
Date : 28th February, 2023.
Appearance:
Mr. Rahul Tangri, Adv.
Ms. Udita Saraf, Adv.
...For the petitioner
Mr. A Ray, Ld. GP
Mr. S. Mukherjee, Adv.
Mr. Debasish Ghosh, Adv.
Mr. D. Sahu, Adv.
...For the State
Mr. Kaushik Dey, Adv.
...For respondent no. 7
The Court : Petitioner has filed this writ petition being aggrieved
by the impugned action of the respondent Authority concerned taking
coercive measure for recovery of the demand in question and
challenging the same on the ground that such action is contrary to
well-settled principles of law that before the expiry of the statutory
period of filing an appeal the adjudicating authority concerned cannot
take coercive measure to recover while admittedly in this case such
coercive action of recovery has been taken by the adjudicating
authority before expiry of the statutory period of filing the appeal.
Learned advocate appearing for the petitioner submits that
against the impugned adjudication order it has already filed the
appeal and there is a condition precedent for filing the appeal that it
will have to deposit 10% of the disputed tax and in the instant case
amount recovered by the adjudicating authority is more than 10% of
the pre-deposit and petitioner prays for refund of the balance amount
after adjusting with the 10% of the pre-deposit from the amount
recovered by the authority concerned.
Mr. Ghosh opposing the writ petition submits that appeal in
question has already been dismissed confirming the order of the
adjudication order in question and such order of the appellate
authority is further appealable before the Tribunal which forum is not
available at present and the condition precedent for filing the appeal
before the Tribunal is making further pre-deposit of 20% of the
disputed tax. Petitioner has no objection if further 20% and in total
30% of the disputed tax is retained as pre-deposit and the balance
amount is refunded to the petitioner.
In support of his contention, petitioner relies on a decision of this
Court in the case of "Purulia Metal Casting (P.) Ltd. vs. Assistant
Commissioner of State Tax, Purulia" reported in [2022] 145
taxmann.com 347 (Calcutta).
Mr. Ghosh, learned advocate representing the respondent
Authority concerned could not place any judgment and order to show
that the aforesaid order in the case of Purulia Metal Casting (P.) Ltd.
(supra) has either been stayed or reversed by any Appeal Court till
date.
Considering the facts and circumstances of this case, this writ
petition being WPO 2004 of 2022 along with IA GA 1 of 2023 is
disposed of by directing the respondent Authority concerned to refund
the balance amount after retaining 30% from the same as pre-deposit,
within a period of four weeks from the date of communication of this
order. The retaining of that 30% of the pre-deposit will abide by the
result of the further appeal, if filed against the order of the appellate
authority.
(MD. NIZAMUDDIN, J.)
TR/
