Case Law Details
Jeevandeep Distributors & Anr. Vs State of West Bengal & Ors. (Calcutta High Court)
In the case of Jeevandeep Distributors & Anr. Vs State of West Bengal & Ors., the Calcutta High Court addressed a writ petition challenging an order dated 13th December 2023, which rejected the petitioners’ appeal against a tax assessment under Section 73 of the CGST/WBGST Act, 2017, for the period from July 2017 to March 2018. The petitioners sought relief in the High Court because the Appellate Tribunal, where they would ordinarily appeal, has not yet been constituted. Acknowledging the absence of the Tribunal, the court agreed to hear the writ petition and granted an interim stay on the tax demand issued in Form GST APL 04, dated 13th December 2023. The court directed the petitioners to deposit 10% of the disputed tax amount, in addition to what had already been deposited under Section 107(6) of the Act, within three weeks. This deposit allows the stay to remain in effect until the writ petition is resolved. The respondents were granted six weeks to file their affidavit-in-opposition, with the petitioners given four weeks to reply. The case will proceed after the exchange of affidavits, and the court’s order will serve as the interim relief during this period.
FULL TEXT OF THE JUDGMENT/ORDER OF CALCUTTA HIGH COURT
1. Affidavit of service filed in Court today is taken on record.
2. Challenging, inter alia, the order dated 13th October, 2022 passed under Section 73 of the CGST/WBGST Act, 2017 (hereinafter referred to the “said Act”), for the tax period July, 2017 to March 2018, an appeal was filed before the appellate authority under Section 107 of the said Act. Such appeal was rejected by an order dated 13th December, 2023, by observing that the order passed by the proper officer under Section 73 of the said Act to be justified.
3. Challenging the aforesaid order dated 13th December, 2023, the present writ petition has been filed.
4. Ray, learned advocate appearing on behalf of the petitioners would submit that although the petitioner no.1 has a statutory right to prefer an appeal before the Appellate Tribunal since, the Appellate Tribunal is yet to be constituted, the present writ petition has been filed before this Court. It is submitted that pending hearing of this writ petition the demand raised by the respondents in Form GST APL 04 dated 13th December, 2023 should be stayed.
5. Mr. Siddiqui, learned Additional Government Pleader enters appearance on behalf of the respondents. He, would confirm the fact that the Appellate Tribunal under Section 112 of the said Act is yet to be constituted. He, however, submits that liberty may be granted to file affidavit-in-opposition and this Court may be pleased to admit the writ petition on usual terms as provided in Section 112(8) of the said Act.
6. Having heard the learned advocates appearing for the respective parties and having considered the materials on record as also taking note of the fact that the Appellate Tribunal is yet to be constituted, I am of the view that the writ petition should be heard upon exchange of affidavits.
7. Since the petitioners have been able to make out a prima facie case and having regard to the mandate of Section 112 (8) of the said Act read with Notification dated 16th August, 2024, whereby the Central Goods and Services Tax Act, 2017 has been amended, I am of the view that the petitioner no.1 should be directed to deposit 10% of the remaining amount of tax in dispute in addition to the amount already deposited under Section 107(6) of the said Act. There shall be an unconditional stay of the demand made in Form GST APL 04 dated 13th December, 2023, for a period of three weeks from date.
8. In the event, the petitioner no.1 deposits 10% of the balance amount of tax in dispute, in addition to the amount already deposited in terms of Section 107(6) of the said Act, within three weeks from date, the interim order passed herein, shall continue till the disposal of the writ petition or until further order whichever is earlier.
9. Let affidavit-in-opposition to the present writ petition be filed within a period of six weeks from date. Reply thereto, if any, be filed within four weeks thereafter.
10. Liberty to mention after expiry of the period for exchange of affidavits as mentioned hereinabove. All parties shall act on the basis of the server copy of this order duly downloaded from the official website of this Court.
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