case be made out under Section129
Case Title | Assistant Commissioner, State Tax vs Ashok Kumar Sureka |
Court | Calcutta High Court |
Honorable Judges | Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharyya |
Citation | 2022 (5) GSTPanacea HC Calcutta MAT 470 of 2022 With I.A. No.CAN 1 of 2022 |
Judgement Date | 12-May-2022 |
Council for Petitioner | Mr. T. M. Siddique, Soumitra Mukherjee and Debasish Ghosh |
Council for Respondent | Mr. Ankit Kanodia, Himangshu Kumar Ray and Megha Agarwal |
In favour of | Petitioner |
Section | Section 129 of the CGST Act, 2017 |
The Calcutta High Court, bench of Justices Prashant Kumar and Rajan Roy, JJ, has held we need not go into the controversy as to whether there was a breakdown of the vehicle, etc. The case has to be approached by considering the bona fides of the transaction as to whether the case warrants detention of the goods and collection of tax and penalty. A case cannot be made out that there was a deliberate and wilful attempt on the part of the respondent /writ petitioner to evade payment of tax so as to justify invocation of the power under Section 129 of the Act.
case be made out under Section129
FACTS OF THE CASE
In this writ petition, petitioner has challenged the impugned order of the appellate Commissioner dated March 18, 2021 confirming the original order dated September 11, 2019 passed by the adjudicating authority under section 129 of the West Bengal Goods and Services Act, 2017 for detention of the goods in question on the grounds that the e-way bill relating to the consignment in question had expired one day before, i.e. in the midnight of September 8, 2019, and that the goods was detained in the morning of September 9, 2019 on the grounds that the e-way bill has expired which is even less than one day and extension could not be made and petitioner submits that delay of few hours even less than a day of expiry of the validity of the tenure of the e-way bill was not deliberate and willful and was due to break down of the vehicle in question and there was no intention of any evasion of tax on the part of the petitioner.
Learned advocate appearing for the respondent could not make out a case against the petitioner that the aforesaid violation was willful and deliberate or with a specific material that the intention of the petitioner was for evading tax.
case be made out under Section129
COURT HELD
Considering the submission of the parties and the facts and circumstances of the case, the court held that we need not go into the controversy as to whether there was a breakdown of the vehicle, etc. The case has to be approached by considering the bona fides of the transaction as to whether the case warrants detention of the goods and collection of tax and penalty. Admittedly, the first e-way bill dated 7thSeptember, 2019 was valid upto 9th September, 2019. Therefore, in the absence of second e-way bill, the tax authorities at Durgapur could not have intercepted or detained the vehicle. Therefore, the explanation offered by the respondent / writ petitioner was an acceptable explanation and a case cannot be made out that there was a deliberate and wilful attempt on the part of the respondent / writ petitioner to evade payment of tax so as to justify invocation of the power under Section 129 of the Act.
This writ petition is disposed of by setting aside the impugned order of the appellate authority dated March 18, 2021 as well as the order of the adjudicating authority dated September 11, 2019 and as a consequence, the petitioner will be entitled to get the refund of the penalty and tax paid on protest subject to compliance of all legal formalities
case be made out under Section129
ANALYSIS OF THE JUDGEMENT
By noticing the above order we analyse that the proceedings U/s 129 of the Act should not be resorted to for every lapse and the bonafide of the case has to be seen and decided upon before proceeding under Section 129 of the Act.
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