Anis Patel Vs Assistant Commissioner (Calcutta High Court)
Calcutta High Court held that writ petition insisting deferring the GST recovery proceedings without challenging the appellate order is not maintainable. Accordingly, writ dismissed.
Facts- The petitioner insists that this Court should indefinitely defer the recovery of the demand raised by the respondents in GST Form DRC -07 dated 31st March, 2023 for the tax period April, 2021 to March 2022, for at least till such time the appellate tribunal is constituted.
Conclusion- From judgment delivered in Rochem India Pvt. Ltd. it appears that challenging an appellate order the writ petition was filed before the Bombay High Court and it is in connection therewith, the Bombay High Court had granted such relief. Incidentally, in the present case, there is no such challenge to the appellate order.
Held that this is not a fit case for exercising discretion in favour of the petitioner, especially when the petitioner only insists for deferring the recovery proceeding without the petitioner seeking adjudication of its rights.
FULL TEXT OF THE JUDGMENT/ORDER OF CALCUTTA HIGH COURT
1. The present writ petition has been filed, inter alia, praying for the following reliefs:
a) A writ/s of, order/s, direction/s in the nature of Prohibition restraining the respondents from giving effect to the impugned order of appeal dated April 19, 2024 till of a period of 3 months after the setting up of GST Tribunal under Section 110 of the relevant GST Acts;
b) A writ/s of, order/s, direction/s in the nature of Prohibition restraining the respondents from giving effect to the impugned notice of demand in FORM GST APL-04 dated April 19, 2024 till of a period of 3 months after the setting up of GST Tribunal under Section 110 of the relevant GST Acts;
c) A writ/s of, order/s, direction/s in the nature of Prohibition restraining the respondents from realizing any amount pursuant to the order of appeal dated April 19, 2024 that of the adjudication date March 31, 2023 and/or any notices of demand arising thereof till 3 months from the setting up of GST Tribunal under Section 110 of the relevant GST Acts;
d) An interim order restraining the respondents from realizing any amount pursuant to the order of appeal dated April 19, 2024 that of the adjudication dates March 31, 2023 and/or any notices of demand arising therefrom till the disposal of the instant;
e) An order of injunction restraining the Respondents and each of them and/or their men and agents from taking any coercive action again the petitioner during the pendency of the instant application and/or any other action that may make this application futile and/or infructuous, till the disposal of the instant application;
f) Costs of and incidental to this application be paid by the Respondents; and
g) Such further or other order or orders be made and/or direction or directions be given as to this Hon’ble Court may deem fit and proper, rendering complete justice to the Petitioner.
2. The petitioner insists that this Court without going into the merit of the controversy and without considering whether the petitioner is at all entitled to interim relief, in connection with its proposed challenge to the order passed by the appellate authority on 19th April, 2024, before the appellate tribunal, by reasons of the appellate tribunal not being constituted under Section 112 of the WBGST/CGST Act, 2017 (hereinafter referred to as the “said Act”) should indefinitely defer the recovery of the demand raised by the respondents in GST Form DRC -07 dated 31st March, 2023 for the tax period April, 2021 to March 2022, for at least till such time the appellate tribunal is constituted.
