Calcutta High Court (Appellete Side)
M/S. Bharat Pump House vs The State Of West Bengal & Ors on 1 September, 2023
Form No. J.(2)
Item No.7
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
HEARD ON: 01.09.2023
DELIVERED ON: 01.09.2023
CORAM:
THE HON'BLE CHIEF JUSTICE T.S. SIVAGNANAM
AND
THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA
M.A.T. 805 of 2023
With
I.A. No. CAN 1 of 2023
+
I.A. No. CAN 2 of 2023
M/s. Bharat Pump House
Vs.
The State of West Bengal & Ors.
Appearance:-
Mr. P. K. Das
Mr. Indranil Banerjee
Mr. Subrata Mukherjee .........for the appellant
Mr. T.M. Siddique .........for the State
JUDGMENT
(Judgment of the Court was delivered by T.S. SIVAGNANAM, C.J.)
1. This intra-Court appeal by the petitioner is directed against the order dated
1st May, 2023 passed in W.P.A. 6507 of 2023. The writ petition is still
pending before the learned Single Bench. However, while entertaining the
writ petition and directing the affidavits to be filed, the learned Single
Bench was not inclined to grant any interim order. This is why the
appellant is before this Court praying for appropriate directions/orders.
2. With the consent of the learned advocates on either side, the writ petition is
taken up along with this appeal for being disposed of by a common order.
3. The challenge in the writ petition is to a cancellation of registration granted
in favour of the appellant by the respondent authorities. Show-cause
notice dated 30th January, 2018 was issued alongwith mismatch of address
in the trade license and that of the address given in the partnership deed.
It is an admitted fact that the appellant did not file its response.
Consequently, the registration stood cancelled by order dated 30 th January,
2018. As rightly pointed out by the learned Government Counsel, there are
multiple remedies available to the aggrieved dealer to seek for revocation of
the order of cancellation of registration and in case, he is unsuccessful,
there is also an appellate remedy provided under the Act. The appellant
did not choose to avail those remedies but had filed the writ petition.
4. The learned advocate appearing for the appellant submitted that in terms of
Rule 24 of the Central Goods and Services Tax Rules, 2017, which deals
with migration of persons registered under the existing law, under sub-Rule
(3) when particulars or information specified in sub-Rule (2) have either not
ben furnished or not found to be correct or complete, the appropriate officer
will be entitled to take action for cancellation of the provisional registration
granted under sub-Rule (1) of Rule 24. It is submitted that under sub-Rule
(3) of Rule 24, prior to taking any action for cancellation, the dealer is
entitled to be served with the show-cause notice and after affording the
person concerned a reasonable opportunity of being heard, an order can be
passed. It is the submission of the learned advocate appearing for the
appellant that in the instant case, though the appellant did not file its
response to the show-cause notice, the order of cancellation of the
provisional registration has been done without granting an opportunity of
being heard in person. Therefore, it is submitted that the order is in
violation of principles of natural justice.
5. Further, it is submitted by the learned advocate appearing for the appellant
that the appellant is ready and willing to pay the taxes and it may be
permitted to file the returns.
6. We have heard the learned counsel on the above submission.
7. As noted above, the appellant did not file its response to the show-cause
notice. Therefore, the authority cannot be faulted for proceeding ex parte.
Nevertheless, while doing so, the authority ought to have informed the
appellant and fixed the date for personal hearing after which he could have
taken action. This being a mandate under Rule 24(3) of the said Rules, the
same cannot be bypassed.
8. Therefore, we are of the view that the matter should be relegated back to
the authority namely, the Commercial Tax Officer having jurisdiction to
enable the appellant to file its response to the allegation in the show-cause
notice and the authority shall afford an opportunity of personal hearing to
the authorised representative of the appellant and thereafter proceed to
decide the matter on merits and in accordance with law.
9. Needless to state that if the appellant is able to reconcile the mismatch
pointed out in the show-cause notice, if there are no other legal
impediment, the order of cancellation of the provisional registration can be
set aside and the registration can be restored to enable the appellant to file
its returns, pay the taxes along with other statutory dues.
10. In the result, the appeal and the writ petition are allowed to the extent by
setting aside the order of cancellation of the provisional registration dated
30th January, 2018 and the matter stands remanded to the Commercial
Tax Officer having jurisdiction.
11. The appellant is directed to submit its response/reply to the allegations in
the show-cause notice within 15 days from the date of receipt of server
copy of this order, after which the said authority shall afford an
opportunity of personal hearing and proceed to take a decision on merits
and in accordance with law. In the interregnum, since the authority has
already issued a notice in DRC-01 dated 4 th March, 2023, the said
authority namely, Deputy Commissioner of State Tax, Srirampur Charge is
directed to keep in abeyance the said notice and proceed further after a
decision is taken in terms of the above directions.
12. No costs.
13. 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)
CHIEF JUSTICE
I agree.
(HIRANMAY BHATTACHARYYA, J.)
Pallab/KS AR(Ct.)
