Case Title | Assistant Commissioner State Tax, Durgapore Range, Govt of West Bengal Vs Ashoka Kumar Sureka, Proprietor of Shubham Steel, Kolkata |
Court | Calcutta High Court |
Honorable Judges | Justice T. S Sivagnanam and Justice Hiranmay Bhattacharya |
Citation | 2022 (5) GSTPanacea 96 HC Calcutta C.W.P. of MAT 470 of 2022 |
Judgement Date | 12-May-2022 |
Council for Petitioner | Md. T M Siddique Ms. Somitra Mukhargee Debashish Ghosh |
Council for UOI | |
Council for State | Ankit Kanodia Himanshu Kumar Ray Megha Aggrawal |
The Calcutta High Court bench of Justice T. S Sivagnanam and Justice Hiranmay Bhattacharya has held that The vehicle and goods cannot be detained on mere facts of expiry of E-Way bill where there is no intention to evade the tax by assessee.
FACTS OF THE CASE
The Vehicle carrying goods against two difference invoices one of them within 9 kilometers of range and other is approx 168 km to Kolkata and Delhi respectively was originated from Kolkata.
The E-way bills was generated by Assessee( Petitioner) on 7th Sep 2019 valid upto 9th Sep 2019 midnight and other is valid upto 8th Sep 2019 midnight. Both E-way bills was evidenced that vehicle is same.
The Vehicle was braked down and due to same the vehicle intercepted at 1:30 Pm of 8th Sep 2019 by squad(GST). The vehicle was detained and seized.
On the protest assessee deposited the penalty and tax levied by order of Respondent.
Hence assessee filed this writ petition.
COURT HELD
Considering the facts as recorded, and after hearing both the learned counsel, court held that after bonafied of petitioner has to be tested on the documents submitted.
We need not to go into controversy as to whether break down was conducted etc.
After considering the bonafides intention of petitioner , it is admitted that first E-way bill dated 7th Sep 2019 was valid upto midnight of 9th Sep 2019, therefore in the absence of second E-way bill the tax authorities of durgapore , Kolkata cannot intercept and detain the vehicle, hence it is not a willfull attempt of and no intention to evade tax under section 129 of the Act,
The court directs petitioner to file an appeal for refund of tax for demand order dated 7th mar 2022 within two weeks of this judgement order.
ANALYSIS OF THE JUDGEMENT
Mere and factual conditions where assessee fails to comply or be complied later on part of provision of the Act cannot prove the evasion of tax under this Act.
In this case it is observed that assessee has complied all the provisions of this Act, and or mere facts the demand order has been served to assesee imposing demand against evasion of tax doubt.
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