Stores Cement Vs State of West Bengal & Ors. (Calcutta High Court)
The petitioner, a distributor, filed a writ petition under Article 226 of the Constitution challenging an Order-in-Original dated 19 November 2024, issued under Section 74 of the West Bengal Goods and Services Tax Act for the assessment period 2022–2023. According to the petitioner, the order was fundamentally defective because it relied on an inspection conducted under Section 67(1) of the WBGST Act on 24 February 2023. The petitioner argued that such an inspection could only be carried out after the authorities recorded “reasons to believe” in writing, as required by Section 67(1). The petitioner contended that the inspection report was prepared during the search, which indicated that no prior “reasons to believe” were recorded. Further, it was submitted that the inspection lacked proper authorization as mandated under Rule 139 of the WBGST Rules.
The petitioner also argued that the Order-in-Original relied on seized documents that were never supplied, resulting in a violation of the principles of natural justice. It was submitted that although an alternative appellate remedy existed, this did not bar the High Court from entertaining the writ petition when allegations involved jurisdictional errors or breaches of natural justice.
The State and CGST authorities opposed the petition. After reviewing the materials on record, the Court observed that the inspection took place on 24 February 2023 and that the Order-in-Original passed on 19 November 2024 was an appealable order under Section 107 of the WBGST Act. Under Section 107(1), an appeal must be filed within three months from communication of the order, and under Section 107(4), a further one-month period may be allowed if delay is sufficiently explained. The writ petition, however, was filed on 25 August 2025—well beyond both the statutory appeal period and the maximum condonable period.
The petitioner argued that the appeal could not be filed within time because the petitioner’s father was ill during the relevant period, but the Court noted that no documents were annexed to substantiate this claim. Additionally, upon reviewing the Order-in-Original, the Court observed that the petitioner did not raise any objection regarding non-supply of seized documents before the adjudicating authority. The petitioner had participated in the proceedings and made submissions on the merits without raising any grievance about missing documents. Given this participation and the lack of timely objections, the Court held that the plea of natural justice violation was not supported by the record.
The Court also noted that the petition raised factual disputes related to the adjudication, which were unsuitable for resolution in writ jurisdiction under Article 226. It reiterated that the writ court cannot act as an appellate authority in matters involving factual determinations. It further held that a writ petition cannot be entertained merely because the statutory limitation period has expired when the order under challenge is appealable. The Court emphasized that the petitioner had also challenged the very basis of the inspection conducted in February 2023 but had not explained the two-year delay between the inspection date and filing of the writ petition in August 2025.
Because of these factors—including delay, availability of an appellate remedy, lack of supporting material, and participation before the adjudicating authority—the Court declined to entertain the writ petition.
At that stage, the petitioner’s counsel submitted that the petitioner intended to file an appeal before the appellate authority and requested the Court to direct the authority to condone the delay, citing the time consumed during the pendency of the writ petition. The State’s counsel submitted that the petitioner should instead file an application for condonation of delay before the appellate authority itself.
Considering that time was consumed in litigating the writ petition, the Court allowed the petitioner to approach the appellate authority within 30 days from receipt of the server copy of the order. It directed that if the appeal was filed within this 30-day period, the appellate authority should consider it on the merits without dismissing it solely on limitation grounds. However, the Court clarified that the appeal would be entertained only if the petitioner complied with the pre-deposit requirement under Section 107(6) of the WBGST Act. The Court also clarified that it had not entered into the merits of the case and that its observations were limited to explaining the basis for dismissing the writ petition.
The writ petition was accordingly disposed of with these directions and clarifications.
FULL TEXT OF THE JUDGMENT/ORDER OF CALCUTTA HIGH COURT
This application under Article 226 of the Constitution of India is at the instance of a distributer and is directed against an Order-in-Original dated November 19, 2024 passed by the Deputy Commissioner, Jalpaiguri Charge, Jalpaiguri under Section 74 of the West Bengal Goods and Services Tax, 2017 for the period of 2022-2023.
The learned advocate appearing for the petitioner submits that the very foundation of the Order-in-Original dated November 19, 2024 is an inspection being carried out under the provisions of Section 67(1) of the WBGST Act by a team of officials of the State authorities on February 24, 2023.
The learned advocate for the petitioner places reliance upon the provisions of Section 67 (1) of the WBGST Act, 2017 in support of his contention that the inspection search and seizure has to be carried out only after recording reasons to believe in writing that a taxable person has suppressed any transaction relating to supply of goods or services or both or the stock of goods in hand or has claimed input tax credit in excess of his entitlement under the said Act.
The learned advocate for the petitioner further submits that the inspection report was prepared during the course of the search and seizure and, therefore, there could not have been any reasons to believe for conducting the inspection search and seizure. He further submits that no authorization in the prescribed manner was also made as prescribed under Rule 139 of the WBGST Rules.
The learned advocate for the petitioner submits that the authority, while passing the Order-in-Original dated November 19, 2024, relied upon the seized documents. He submits that the copies of the relied upon document were not supplied to the petitioner which resulted in gross violation of the principles of natural justice. He further submits that the availability of an alternative remedy cannot be an absolute bar as an aggrieved party can approach the Writ Court if there has been violation of the principles of natural justice or the order impugned has been passed without having jurisdiction.
Heard the learned advocate for the State and CGST authorities on such submission.
After going through the materials on record, this Court finds that the inspection was conducted sometimes on February 24, 2023. It is not in dispute that an appeal lies against the Order-in-Original dated November 19, 2024 passed by the Deputy Commissioner, Jalpaiguri Charge, Jalpaiguri.
The petitioner has approached the Writ Court on the ground that there has been gross violation of the principles of natural justice and the provisions of the relevant statute. The Order-in-Original was passed on November 19, 2024. Against the said Order-in-Original an appeal lies under the provisions of Section 107 of the 2017 Act.
Section 107 (1) of the said Act states that such an appeal has to be preferred within three months from the date on which the decision or order is communicated to such person. Sub-Section (4) of Section 107 of the said Act states that the appellate authority may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months, may allow it to be presented within a further period of one month.
The instant writ petition has been filed only on August 25, 2025 i.e., well beyond the statutory period of limitation as well as the period specified under Section 107 (4) vesting power upon the appellate authority to condone the delay.
The learned advocate appearing for the petitioner would contend that the appeal could not have been preferred within the statutory period of limitation as the father of the petitioner was ill at the relevant period of time.
On a query of the Court the learned advocate appearing for the petitioner, in his usual fairness, submits that no document has been annexed in the writ petition to show that the petitioner at any relevant point of time approached the original authority for supplying the relied upon documents to the petitioner.
After going through the Order-in-Original it appears that the petitioner did not raise any objection regarding non-supply of relied upon documents before the original authority at the time of hearing.
The petitioner, however, participated in the proceedings before the original authority and made submissions on merits without ventilating his grievances that he is not in possession of the copies of the relied upon documents. That apart, the writ petition was filed long after the expiry of the period of limitation.
After going through the order impugned, this Court finds that certain factual issues were involved in such adjudication. The Writ Court in exercise of its power under Article 226 of the Constitution cannot act as the appellate court.
It is well-settled that a writ petition cannot be entertained only because the same has been filed after the statutory period of limitation has lapsed when the order under challenge is an appealable one. That apart, the petitioner has challenged the very basis of the inspection which took place on February 24, 2023. A challenge against an inspection that was conducted way back in February 2023 in this writ petition which was filed on August 25, 2025 cannot be entertained as the petitioner has not explained the reasons for the delay between the period from February 24, 2023 till the passing of the Order-in-Original in the writ petition.
For all the reasons as aforesaid, this Court is not inclined to entertain this writ petition.
At this stage, the learned advocate appearing for the petitioner, on instruction, submits that the petitioner intends to approach the appellate authority for challenging the Order-in-Original dated November 19, 2024 and the appellate authority be directed to condone the delay as some time has been consumed due to the pendency of this writ petition.
The learned Additional Advocate General submits that the petitioner be directed to file an application for condonation of the delay before the appellate authority.
However, since the writ petition was filed and some time was consumed due to the pendency of this writ petition, this Court is inclined to allow the petitioner to approach the appellate authority within a period of 30 days from the date of receipt of a server copy of this order. If the appeal is preferred within the time limit indicated hereinbefore, the appellate authority shall consider the appeal on its merit without dismissing the same on the ground of limitation. It is however, made clear that the appeal shall be entertained only upon the petitioner fulfilling the conditions for pre-deposit as stipulated under Section 107(6) of the WBGST Act.
It is, however, made clear that this Court has not entered into the merits of the claims and counter-claims of the respective parties and the observation made hereinbefore are only to support the ultimate conclusion.
With the above observation this writ petition is disposed of. All parties shall act with the server copy of this order duly downloaded from the official website of this Court.
