Calcutta High Court (Appellete Side)
Deepika Mandal Maity vs The Assistant Commissioner Of ... on 16 March, 2023
Item No.2.
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
HEARD ON: 16.03.2023
DELIVERED ON: 16.03.2023
CORAM:
THE HON'BLE MR. JUSTICE T. S. SIVAGNANAM
AND
THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA
M.A.T. 222 of 2023
With
I.A. No.CAN 1 of 2023
Deepika Mandal Maity.
Vs.
The Assistant Commissioner of State Tax, Bureau of Investigation, South
Bengal, Howrah Zone & Ors.
Appearance:-
Mr. Jaweid Ahmed Khan,
Mr. Bhaskar Sengupta,
Mr. Talha Ahmed Khan .... for the appellant
Mr. T. M. Siddique,
Mr. Debasish Ghosh,
Mr. Debraj Sahu ... for the State of W.B.
JUDGMENT
(Judgment of the Court was delivered by T.S. SIVAGNANAM, J.)
1. This intra-Court appeal filed by the writ petitioner is
directed against an order dated 13th January, 2023, 2023 in WPA
No.648 of 2023. The said writ petition was filed by the
appellant challenging an order passed by the adjudicating
authority dated 16th December, 2022 levying a total penalty of
Rs.8,97,125/-. The allegation is that the excavator owned by
the appellant was being transported, which was intercepted and
the road challan, which was issued, was produced before the
authority and according to the authority, the transportation of
the vehicle was in contravention of Section 129 of the Act and
therefore, liable for payment of penalty.
2. It is clear that there is no allegation that the appellant
had sold the excavator in question and upon sale, it was being
transported. The appellant's case is that the vehicle was
purchased by the appellant by availing financial assistance from
a bank and a hypothecation agreement has been entered into with
the bank and the vehicle cannot be sold by the appellant. It is
the further case of the appellant that the vehicle was being
used for various job works and while performing the job work in
one of the universities, the excavator got damaged and it was
being transported by using another lorry for repairs and at that
juncture, it was intercepted.
3. The learned Single Bench dismissed the writ petition on the
ground that the appellant has to file an appeal before the
appellate authority. Insofar as the factual issues are
concerned, it is but appropriate that the appellant avails the
alternate remedy of appeal. However, this Court is of the view
that the vehicle, which was carrying the excavator and the
excavator could not be kept under detention as it will
deteriorate the value of both the vehicles and it will be
counter productive as the appellant will not be able to repair
and use the vehicle. Consequently, he will be declared as a
defaulter in payment of the monthly instalments to the bank and
the net result would be even assuming that the order of penalty
is to be upheld, it will continue to remain as a paper work.
Therefore, while affirming that portion of the order passed by
the learned Writ Court directing the appellant to file an appeal
before the appellate authority, if the appellant files such an
appeal, upon payment of the requisite pre-deposit, both the
vehicles in question, i.e. the excavator and the vehicle, which
was carrying the excavator shall be released after obtaining an
undertaking from the appellant that he shall not sell the
excavator till the disposal of the appeal.
4. The release of the vehicle shall be done within three days
from the date on which the appeal is filed before the appellate
authority and the pre-deposit is made and the requisite challan
is produced before the detaining authority.
5. With this direction, the appeal along with the application
being I.A. No.CAN 1 of 2023 are disposed of.
6. There shall be no order as to costs.
7. 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,
(HIRANMAY BHATTACHARYYA, J.)
NAREN/PALLAB(AR.C)
