Case Law Details
Rohit Kedia Vs Assistant Commissioner of State Tax (Calcutta High Court)
Calcutta High Court has set aside an order by the Assistant Commissioner of State Tax that dismissed an appeal due to a 47-day delay, remanding the case back to the appellate authority for a decision on its merits. The ruling came in the case of Rohit Kedia Vs Assistant Commissioner of State Tax, where the petitioner challenged an order dated January 3, 2025, passed under Section 107 of the CGST/WBGST Act, 2017.
The dispute originated from an order issued on March 28, 2024, under Section 73 of the said Act, concerning the tax period of April 2018-March 2019. This original order became the subject of the appeal. The petitioner, Rohit Kedia, had deposited the required pre-deposit of Rs. 58,903 for the appeal. However, the appeal was filed with a delay of 47 days. The appellate authority, without adequately considering the explanation provided by the petitioner for the delay, dismissed the appeal solely on the grounds of limitation.
Mr. Choraria, the learned advocate representing the petitioner, argued that although an alternative remedy in the form of an appeal before the appellate tribunal exists, the petitioner was compelled to approach the High Court due to the non-constitution of the appellate tribunal. He further submitted that the original show cause notice was uploaded to the portal under the “additional notices” head, and the petitioner, citing limited computer knowledge and the illness of a family member, was unable to respond to it.
Ms. Siddiqui, the learned senior advocate and Additional Government Pleader appearing on behalf of the State, acknowledged that the appellate tribunal is yet to be constituted. She contended that the appellate authority’s order did not suffer from any irregularity.
Upon hearing both parties and considering the available records, the High Court observed that the original order was based on an unresponded show cause notice. The core issues, including the petitioner’s explanation for not responding and the merits of the challenge to the original order, were not adjudicated by the appellate authority because the appeal was considered time-barred.
The Court noted that the petitioner was effectively prevented from availing a statutory remedy due to the non-constitution of the appellate tribunal. While acknowledging that the High Court could ordinarily hear the matter on its merits, it highlighted the practical difficulties involved in deciding factual issues related to tax computation. The Court reasoned that the appellate authority has direct access to the electronic records on the portal, making it more convenient for them to decide the factual aspects. In contrast, the High Court would require the entire electronic records to be downloaded and produced.
Considering these factors and the “marginal delay” in filing the appeal, the High Court deemed it appropriate to remand the matter back to the appellate authority for adjudication on merit. The order passed by the appellate authority on January 3, 2025, dismissing the appeal, was set aside. The appellate authority has been directed to hear and dispose of the appeal on its merits as expeditiously as possible, preferably within a period of six weeks from the date of the order.
In a significant development, the petitioner informed the Court that their bank account had been attached. Given that the petitioner had already made the pre-deposit, the High Court opined that such an attachment could not be permitted to continue. The Court directed that if the petitioner makes an application to the appellate authority for the release of their bank account from attachment, the appellate authority must hear and decide such application within one week of its filing. This application for the release of the bank account must be decided before proceeding to hear the appeal on its merits.
The writ petition, WPA 1461 of 2025, was thus disposed of with these directions and observations. All parties are instructed to act on the basis of the server copy of the order downloaded from the High Court’s official website.
FULL TEXT OF THE JUDGMENT/ORDER OF CALCUTTA HIGH COURT
1.Challenging the order dated 3rd January 2025 passed under Section 107 of the CGST / WBGST Act, 2017 (hereinafter referred to as the “said Act”) the instant writ petition has been filed.
2. It appears that the original order under Section 73 of the said Act was passed on 28th March 2024 in respect of the tax period April 2018-March 2019. The said order forms subject matter of challenge in the appeal. The Form GST APL – 02 demonstrates that the petitioner had deposited the pre deposit of Rs.58,903/- as is required for maintaining such appeal. It is submitted that there was a delay of 47 days in preferring the appeal. Although, an explanation was given, the appellate authority without appropriately considering such explanation, had dismissed the appeal on the ground of limitation.
3. Choraria, learned advocate appearing on behalf of the petitioner submits that although the petitioner has an alternative remedy in the form of appeal before the appellate tribunal, however, since the appellate tribunal is yet to be constituted the petitioner has been compelled to approach this Court. He would submit that since the show cause notice was uploaded in the portal under the head additional notices and the petitioner having little knowledge about computer operations, and also further due to illness of one of the family members, was unable to give his response.
4. Mr. Siddiqui, learned senior advocate and Additional Government Pleader appearing on behalf of the State submits that the appellate tribunal is yet to be constituted. According to him the order does not suffer from any irregularity.
5. Heard the learned advocates appearing on behalf of the respective parties and considered the materials on record.
6. It would transpire that the original order passed by the proper officer on 28th March 2024 for the tax period from 1st April 2018 to 31st March 2019 was based on a show cause which was not responded to by the petitioner. The explanation given by the petitioner and the challenge to such order is yet to be tested out as the matter was also not adjudicated by the appellate authority since the same was barred by limitation. Today, the petitioner has approached this Court insisting that the petitioner has a statutory remedy. The petitioner has been prevented from availing the same by reason of the appellate tribunal not being constituted. Having regard thereto, ordinarily this Court would be required to hear out this matter on merits, however, since the matter concerns computation of tax, if the matter is heard by the appellate authority at the first instance, it will be far more convenient to decide the factual issues considering the fact that the records are available on the portal which can be directly assessed by the appellate authority on the contrary for this Court to decide the matter the entire records which are only available electronically on the portal, would be required to be downloaded for being produced.
7. Having regard thereto, I am of the view that in the fitness of things and considering the marginal delay, it would be proper to remand the matter back to the appellate authority for adjudication on merit. While setting aside the order passed by the appellate authority dated 3rd January 2025, I direct the appellate authority to hear out and dispose of the appeal on merit as expeditiously as possible preferably within a period of 6 weeks from date.
8. Since, the petitioner at this stage would submit that the petitioner’s bank account has been attached, considering the fact that the petitioner has already made the pre deposit, I am of the view that such attachment cannot be permitted to continue. However, considering the fact that the matter has already been remanded back, I am of the view that in the event, the petitioner makes an application before the appellate authority, the appellate authority shall, having regard to the facts of this case and the observations made hereinabove, and if it is found that the attachment is restricted to the demand based on appellate order dated 3rd January, 2025, shall hear out and decide such application for release of the petitioner’s bank account within a period of one week from filing of such application. The above application for release of the bank account from attachment must be decided first before proceeding to hear out the appeal.
9. With the above directions and observations, the writ petition being WPA 1461 of 2025 is accordingly disposed of.
10. All parties shall act on the basis of the server copy of this order duly downloaded from this Court’s official website.
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