Calcutta High Court (Appellete Side)
Rkec Projects Limited vs The Assistant Commissioner Of Revenue on 2 September, 2024
ML -18 IN THE HIGH COURT AT CALCUTTA
02.09.2024 CONSTITUTIONAL WRIT JURISDICTION
b.r./D. Hira
Ct No. 5 APPELLATE SIDE
WPA 17195 of 2024
RKEC Projects Limited
Vs.
The Assistant Commissioner of Revenue, State Tax,
Bureau of Investigation, South Bengal Headquarters &
Ors.
Mr. Sandip Choraria,
Mr. Rishav Manna.
... for the petitioner
Mr. A. Ray,
Mr. Md. T.M. Siddique,
Mr. T. Chakraborty,
Mr. D. Sahu.
.. for the State
1. Challenging, inter alia, an order dated 25th
January, 2024 passed under Section 73 of the
WBGST/CGST Act, 2017 (hereinafter referred to
as the said Act) for the tax period April 2019 to
March 2020, the present writ petition has been
filed.
2. Mr. Choraria, learned counsel appearing on
behalf of the petitioner by drawing attention of
this Court to the show-cause notice issued in
form GST DRC 01 dated 4th December, 2023
would submit that the entire demand made by
the respondents is on account of interest.
3. According to the petitioner, the petitioner had
made payment of its tax liability from the credit
ledger and having regard thereto, no interest can
be levied on the petitioner.
4. According to him, the amount available in the
credit ledger, for discharging the liability was
available from the date when the liability arose
till discharge thereof. He submits that the
proper officer by glossing over the response filed
by the petitioner had determined the liability to
the extent of Rs.84,20,353/-.
5. By placing before this Court an unreported
judgment delivered in the case of M/s. Refex
Industries Limited v. The Assistant
Commissioner of CGST & Central Exercise
passed by the Hon'ble High Court of judicature
at Madras in W.P. No. 23360 of 2019, he submits
that in an identical set of facts, the Madras High
Court while answering an issue in favour of the
registered tax payer as to whether the interest
can be made levied when an Input Tax Credit
(I.T.C.) is available in the credit of a registered
tax payer, had concluded that on proper
application of Section 50 of the said Act it would
appear that the same provides for levy of interest
on belated cash payment and not on I.T.C. which
is available in the ledger. He submits since the
credit was available with the department to the
credit of the assessee, interest could not have
been levied.
6. According to Mr. Choraria, this case is no
different from the judgment delivered in the case
of M/s. Refex Industries Limited (supra). He
would submit that on such ground the present
writ petition should also be allowed.
7. In response to the query of the Court as regards
presence of alternative remedy, he would submit
that it is a legal issue, the alternative remedy
cannot defeat the right of the petitioner to
maintain its action before this Court.
8. Mr. Chakraborty, learned counsel appearing on
behalf of the respondents on the other hand
would submit that a determination has already
been made under Section 73 of the said Act. The
petitioner has an alternative remedy in the form
of an appeal before the Appellate Authority. In
such view of the matter, when efficacious
alternative remedy is available, this Court should
not entertain the present writ petition.
9. He submits that the judgment delivered in the
case of M/s. Refex Industries Limited (supra) is
factually distinguishable from the present case.
No reliance should be placed on the same.
10. Heard learned advocates appearing for the
respective parties and considering the materials
on record, I find that the petitioner by the
present writ petition questions an adjudication
order passed on 25th January, 2024 in respect of
the period April 2019 to March 2020.
11. From the bare perusal of the show-cause
notice in form GST DRC 01 dated 4th December,
2023 for the tax period from April 2019 to March
2020 it transpires although the petitioner claims
to have responded to the show-cause and the
reflection thereof is available in the impugned
order, the petitioner has chosen not to annex
such reply. The petitioner however, insists that
this Court should go into the merits of the case
and by proceeding on the premise that I.T.C. was
available to the credit of the petitioner should set
aside the order including the demand raised by
the respondents in form GST DRC - 07 dated
25th January, 2024. In my view, there are factual
issues, which may require detailed scrutiny of
records.
12. I however, notice that the statute itself
incorporates not only one but two several appellate
authorities, one right of appeal succeeding
another. Though, the Appellate Tribunal under
the said Act is yet to be constituted, the first
appellate authority is very much functional.
13. In dependent of the above, the order
impugned has been passed on 25th January,
2024. The present writ petition has been filed
more than five months thereafter, that is, on 4th
July, 2024. Apparently, there is no explanation
in the petition as to what prevented the
petitioner from filing the writ petition earlier.
14. Be that as it may, since, the petitioner has an
alternative remedy, I am of the view that there is
no scope to entertain this writ petition.
15. In view thereof, the writ petition cannot be
entertained and accordingly fails. The above
order shall not however, stand in the way of the
petitioner to apply before the Appellate Authority,
if so advised, especially, having regard to the
fact that the Appellate Tribunal under the said
Act is yet to be constituted, as such the
petitioner cannot be regarded remediless.
16. If the petitioner applies before the Appellate
Authority within a period of three weeks from
date, the Appellate Authority having regard to
the observations made herein and the pendency
of this writ petition before this Court by
condoning the delay shall hear out and dispose
of the appeal on merits as expeditiously as
possible preferably within a period of eight weeks
from the date of communication of this order.
Subject to compliance of other formalities by the
petitioner.
17. With the above observations and directions,
the writ petition stands disposed of.
18. Urgent certified copy of this order, if applied
for be made over to the parties upon compliance
of all necessary formalities.
(Raja Basu Chowdhury, J.)
