2024(10)LCX0428
SIGMA POWER PRODUCTS PVT. LTD
Versus
ADDITIONAL COMMISSIONER OF REVENUE
W.P.A 21723 of 2024 decided on 03-10-2024
3rd October,2024
W.P.A 21723 of 2024
M/s. Sigma Power Product Private
Limited and another
Vs.
Additional Commissioner of Revenue, Chamdani Chowk,
Dharmatola Circle and another
Mr. Vinay Kr. Shraff
Mr. Dev Kr. Agarwal
…for the petitioners.
Mr. Anirban Ray
Md. T.M. Siddqui
Mr. Tanoy Chakraborty
M. D. Sahu
…for the State.
1. Challenging the order dated 29th April, 2024 passed under Section 73 of the WBGST/CGST Act, 2017 (hereinafter referred to as ‘the said Act’) for the tax period April 2018 to March 2019 the instant writ petition has been filed.
2. Mr. Shraff, learned Advocate appearing in support of the aforesaid petition, by referring to the order dated 29th April, 2024 would submit that the proper officer without any cause has purported to abridge the ordinary time limit for making payment of the demand. According to him, no reasons have been assigned for abridging the time for making payment of the demand.
3. He would submit that the respondents without waiting for the expiry of the ordinary period for filing of the appeal has already recovered approximately 90 per cent of the disputed amount of tax aggregating to Rs.40,22,170/-. Factum of such recovery would corroborate from the copy of the electronic credit ledger which has been annexed at page-246 of the writ petition.
4. According to him, the petitioners have in fact been prevented from seeking stay of the demand by preferring an appeal, since the recovery has already been made. He submits that since the action of the respondents are without jurisdiction, this Hon’ble Court may be pleased to direct the respondents to refund the amount recovered from the petitioners by retaining 10 per cent of the demand and the petitioners may be permitted to prefer an appeal before the Appellate Authority.
5. Mr. Siddiqui, learned Additional Government Pleader appearing on behalf of the respondents, would submit that considering the special circumstances, the proper officer had abridged the time for making payment by invoking the proviso to Section 78 of the said Act. By placing before this Court an e-mail communication dated 3rd June, 2024, he would submit that the petitioners were duly intimated with regard to the recovery proceedings and was called upon to make payment. According to him, such e-mail communication had been issued by invoking the provisions of Sections 79(c)(1) of the said Act. Let a copy of the aforesaid e-mail communication be retained with the record.
6. He submits that there is no irregularity on the part of the proper officer in abridging the time for making payment. Consequently there is also no irregularity on the part of the respondents in recovering the original demand. No case for interference has been made out.
7. According to the respondents, the petitioners have an efficacious alternative remedy in the form of an appeal, as such this Hon’ble Court ought not to entertain the writ petition.
8. Having heard the learned Advocates appearing for the respective parties and considering the fact that the recovery in the instant case had been made even prior to the period for filing of an ordinary appeal from an order passed under Section 73 of the said Act, though the respondents would submit that such recovery has been made in accordance with the provisions of the said Act, I am of the view, since a jurisdictional issue has been raised in the petition, the matter is required to be heard.
9. Although, learned additional Government Pleader would submit that the petitioners have an alternative remedy, I am of the view, once a recovery of approximately to the tune of 90 per cent of the account of tax in dispute has been made,before the ordinary period for filing of an appeal, directing the petitioner to approach the ordinary remedy would be a travesty of justice. Having regard thereto, the writ petition stands admitted and shall be heard.
10. Considering the prima facie case made out and the balance of convenience, inter alia, including the recovery already effected, the respondents are restrained from recovering any further sum from the petitioners on the basis of the demand made in Form GST DRC-07 dated 29th April, 2024 and from enforcing the order passed under Section 73 of the said Act dated 29th April, 2024 for the tax period April 2018 to March 2019, till disposal of the present petition or until further order, whichever is earlier.
11. Let affidavit-in-opposition to the present writ petition be filed within a period of two weeks after the annual vacation; reply, if any, thereto be filed within a week thereafter.
12. List this matter in the monthly list of January 2025 under the heading ‘hearing’.
(Raja Basu Chowdhury, J.)