Calcutta High Court

Calcutta High Court: In a writ petition challenging the order passed by Assistant Commissioner of State Tax, without affording petitioner a reasonable opportunity of being heard, a single-judge bench comprising of Raja Basu Chowdhury,* J., held that the impugned order passed by the Assistant Commissioner of State Tax without granting an extension to respond to the show cause notice issued under Section 73(1) of the CGST and WBGST Act, 2017 (the Act) and without affording a reasonable opportunity of hearing, violates the principles of natural justice and quashed the impugned order.

In the instant matter, the petitioner, a Cooperative Society registered under the West Bengal Cooperative Societies Act, 1973, engaged in parking fee collection, challenged an order dated 06-11-2023, passed by the Assistant Commissioner of State Tax, respondent 1, under Sections 61 and 73 of the Act. The petitioner contended that respondent 1 violated principles of natural justice by not granting an extension for responding to the show cause notice. Respondent 1 argued that the petitioner had been provided with sufficient opportunities and alternative remedies were available.

The Court found that the proper officer failed to consider the petitioner’s application for an extension and erroneously rejected it based on purportedly granting over six adjournments. The Court emphasised that the procedures under Sections 61 and 73 of the Act are independent and should not be conflated. The Court held that respondent 1’s refusal to grant an extension without valid reasons and without affording the petitioner a reasonable opportunity of hearing constitutes a colorable exercise of power and violates the principles of natural justice. The Court asserted that an appeal is not a substitute for revisiting an ex parte order when the defense is not on record. The Court further stated that since the order stands vitiated on the ground of violation of the principles of natural justice, alternative remedy in the form of an appeal does not bar the exercise of extraordinary writ jurisdiction.

The Court quashed the order dated 06-11-2023 and directed the petitioner to file its response to the show cause notice by 15-03-2024. The Court directed the respondents to communicate the date of personal hearing to the petitioner after 15-03-2024. The Court clarified that petitioner would not be entitled to further extensions or opportunities. The writ petition stands partly allowed and application stands disposed of.

[Pioneer Co-op. Car Parking Servicing & Constructions Society Ltd. v. Senior Joint Commissioner, Circle Office, 2024 SCC OnLine Cal 2115, order dated 01-03-2024]

*Judgment by Justice Raja Basu Chowdhury

Advocates who appeared in this case :

Mr. Vinay Kr. Sharaff, Ms. Priya Sarah Paul, Mr. Dev Kr. Agarwal, Ms. S. Poddar, Counsel for the Petitioner

Mr. A. Ray, Mr. T. M. Siddiqui, Mr. T. Charkraborty, Mr. S. Sanyal, Counsel for the Respondents

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