GST order uploaded in wrong section of Website: Calcutta HC allows Appeal filing

Probir Ghosh Vs State of West Bengal & Ors. (Calcutta High Court)

The case of Probir Ghosh versus the State of West Bengal and others, adjudicated by the Calcutta High Court, revolves around procedural issues related to the service and notification of GST-related notices. Probir Ghosh, the petitioner, challenged several notices and an order under the West Bengal Goods and Services Tax (WBGST) Act, 2017.

Factual Background

The Court retained an affidavit of service filed by the petitioner as part of the court record. The petitioner challenged a pre-show cause notice dated November 22, 2022, a show cause notice dated March 31, 2023, for the financial period 2017-18, and an order dated June 16, 2023, issued by the third respondent.

Petitioner’s Arguments

1. Improper Uploading of Notices: The petitioner’s counsel, Mr. Ray, argued that the relevant notices and orders were not uploaded in the “view notices and orders” section of the GST portal, where they were expected to be found. Instead, they were uploaded in the “additional notices and orders” section. This misplacement allegedly led the petitioner to miss these notices, resulting in an ex parte order being passed on June 16, 2023.
2. Violation of Natural Justice: Mr. Ray contended that because the petitioner was unaware of the notices due to their improper placement on the portal, the subsequent order violated principles of natural justice. He cited a judgment from the High Court of Madras in Sabari Infra Pvt. Ltd. versus Assistant Commissioner, which supported his argument that such notices should be published correctly to ensure due process.
3. Request for Remand: Given the circumstances, Mr. Ray requested that the entire proceeding be set aside and remanded back to the third respondent for a fresh adjudication starting from the issuance of the pre-show cause notice.

State’s Arguments

1. Availability of Alternative Remedy: The State’s counsel, Mr. Ray, opposed the petitioner’s plea, arguing that the petitioner had an alternative remedy available under Section 107 of the WBGST Act, which allows for appeals against orders issued under Section 74.
2. Publication in Common Portal: He further argued, citing Section 169(1)(d) of the WBGST Act, that the notices were duly published on a common portal accessible to the petitioner. Therefore, the petitioner’s claim of missing the notices due to their incorrect placement was invalid.
3. Lack of Specificity: The State highlighted that the petitioner failed to specify when he became aware of the notices and the order, which undermined his argument.

Court’s Findings

1. No Specific Disclosure by Petitioner: The Court noted that the petitioner did not specify when he discovered the notices had been uploaded in the “additional notices and orders” section instead of the “view notices and orders” section.
2. No Exercise of Discretion: Due to this lack of specificity, the Court was disinclined to exercise discretion in favor of the petitioner.

Court’s Decision

1. Permission to Appeal: Considering the petitioner had an alternative remedy, the Court allowed the petitioner to approach the appellate authority under Section 107 of the WBGST Act.
2. Condonation of Delay: If the petitioner filed an appeal within six weeks from the date of the order, along with an appropriate application for condonation of delay, the appellate authority would hear and dispose of the application. Upon condoning the delay, the appeal would be addressed on its merits, subject to compliance with pre-deposit provisions.
3. Guidance for Condonation: The Court directed the appellate authority to be guided by judgments in S.K. Chakraborty & Sons versus Union of India and Mukul Islam versus The Assistant Commissioner of Revenue, State Tax Cooch Behar Range.

Conclusion