Case Law Details
Hriday Kumar Das Vs State of West Bengal & Ors. (Calcutta High Court)
In the case of Hriday Kumar Das Vs State of West Bengal & Ors., the Calcutta High Court dealt with a writ petition challenging the appellate authority’s order dated 31st May 2023, issued under Section 107 of the WBGST/CGST Act, 2017. The petitioner had initially appealed against an order passed under Section 74 of the Act, related to the tax period from April 2019 to March 2020. The appellate authority had modified the original tax demand, taking into account the amounts recovered, pre-deposited taxes, and the utilization of Input Tax Credit. However, the petitioner claimed that the appellate authority erroneously calculated his tax liability. Given that the Appellate Tribunal has not yet been constituted, the petitioner approached the High Court for relief. The court acknowledged the petitioner’s statutory right to appeal and the lack of an available GST Appellate Tribunal, thus allowing the writ petition to proceed. As an interim measure, the court directed the petitioner to deposit 10% of the remaining disputed tax amount, in addition to what had already been paid under Section 107(6) of the Act. The court granted an unconditional stay on the tax demand in Form GST APL-04, dated 31st May 2023, pending the resolution of the writ petition. The respondents were given six weeks to file their affidavit-in-opposition, with the petitioner allowed four weeks to reply.
FULL TEXT OF THE JUDGMENT/ORDER OF CALCUTTA HIGH COURT
1. The instant writ petition has been filed, inter alia, challenging the order passed by the appellate authority on 318t May 2023 passed under Section 107 of the WBGST / CGST Act, 2017 (hereinafter referred to as the “said Act”). Challenging the order passed under Section 74 of the said Act dated 3′ November 2021 for the tax period from April 2019 to March 2020, an appeal had been filed and the same was disposed of by modifying the demand made in the original order.
2. From the order impugned it would appear that the appellate authority had taken into account the amount realized from the recovery proceedings and the pre-deposit of taxes made at the time of filing the appeal and utilization of Input Tax Credit for setting off the output tax liabilities.
3. Ray, learned advocate appearing for the petitioner submits that the appellate authority had erroneously computed the liability of the petitioner. He submits that the petitioner has a statutory remedy in the form of an appeal before the appellate tribunal. According to him, since the appellate tribunal is yet to be constituted, the present writ petition has been filed before this Court and this Court may be pleased to stay the demand raised by the respondents in Form GST APL – 04 dated 31st May 2023, pending disposal of the instant writ petition.
4. Ray, learned Government Pleader confirms that the appellate tribunal under the said Act is yet to be constituted. He submits that the present writ petition may be heard on usual terms, as provided for in Section 112(8) of the said Act.
5. Having heard the learned advocates appearing for the respective parties and having considered the materials on record, I find that the petitioner, though has a statutory remedy in the form of an appeal, since the appellate tribunal is yet to be constituted, the present writ petition has been filed.
6. Having regard thereto, I am of the view that the present writ petition should be heard. Taking note of the provisions of Section 112(8) of the said Act and the prima facie case made out by the petitioner, I am of the view that the petitioner should be directed to make payment of 10 per cent of the balance amount of the remaining amount of tax in dispute, in addition to the amount already deposited by the petitioner under Section 107(6) of the said Act with the respondents within two weeks from date.
7. There shall be an unconditional order of stay of the demand raised by the respondents in Form GST APL – 04 dated 318t May 2023 for a period of two weeks from date.
8. In the event, the petitioner deposits the aforesaid sum with the respondents within the period indicated hereinabove, the interim order passed hereinabove shall continue till disposal of the present 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 6 weeks from date. Reply, thereto, if any be filed within 4 weeks thereafter.
10. Liberty to mention immediately upon expiry of the period for exchange of affidavits.
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