the learned writ court
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Case Title |
Assistant Commissioner State Tax vs Ashok Kuamr Sureka. |
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Court |
Calcutta High Court |
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Honorable Judges |
Justice T.S.Sivagnanam & Justice Hiranmy Bhattacharyya |
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Citation |
2022 (5) GSTPanacea 358 HC Calcutta MAT 470 of 2022 |
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Judgement Date |
12-May-2022 |
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Council for Petitioner |
T.M.Siddique Soumitra Mukherjee Debasish Ghosh |
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Council for Respondent |
Ankit Kanodia Himangshu Kumar Roy Megha Agarwal |
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Section |
Section 129 of the Act |
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In Favour of |
In Favour of Respondent |
The Calcutta High Court bench of Justice T.S.Sivagnanam & Justice Hiranmy Bhattacharyya has held that court arrived at a conclusion that it is not a case of willful attempt to evade payment of tax and therefore, the decision having been rendered on the peculiar facts cannot be treated as a precedent. Thus, they are of the view that the relief granted by the learned writ Court is fully justified.As a result, the appeal and the application filed by the department are dismissed.
FACTS OF THE CASE
In the said writ petition, the respondent herein challeged the order passed by the Joint Commissioner (Appeal), CGST and CX, Kolkata Appeal – I Commissionerate dated 18th March, 2021
The said appeal filed before the Joint Commissioner was directed against the order of demand of tax and penalty in Memo dated 11th September, 2019 issued by the Assistant Commissioner of State Tax, Durgapur Range and summary of order under reference dated 11th September, 2019 passed by the Assistant Commissioner of State Tax, Kolkata South.
The learned single Bench while noting the fact found that the detention of the vehicle along with the goods and the demand of tax and penalty not to be justified on the ground that the eway bill, which was being carried in the vehicle transporting the goods had expired on the midnight of 8th September, 2019 and the goods were being transported on 9th September, 2019 and the vehicle was intercepted at 1.30 p.m.(noon) and according to the writ petitioner the vehicle transporting goods had broken down and on account of which, there was delay and there was no willful intention to evade payment of tax.
The learned single Bench was convinced with the factual position and has disposed of the writ petition by setting aside the order dated 11th September, 2019 as well as the order of the appellate authority dated 18th March, 2021 and consequently held that the respondent /writ petitioner will be entitled to get refund of penalty and tax paid on protest subject to compliance of all legal formalities. The department is aggrieved by such order. Hence, this appeal.
The learned counsel appearing for the appellant would submit that neither before the appellate authority nor in the pleadings in the writ petition, the respondent had stated anything about the vehicle being broken down or that non extension of the validity of the e-way bill was not deliberate and willful but due to the circumstances as stated
When such was the factual position, the learned single Bench ought not to have allowed the writ petition by accepting the said argument, which was placed for the first time when the writ petition was moved before the Court.
The learned counsel appearing for the respondent / writ petitioner submitted that the bona fides of the writ petitioner has to be considered and this was taken note of by the learned writ Court and relief was granted. In order to show the bona fides of the writ petitioner, the learned counsel had referred to the documents, which formed part of the records of the writ Court, more particularly, the tax invoice raised by M/s. Bhaskar Steel and Ferro Alloy Private Limited dated 7th September, 2019, e-way bill dated 7th September, 2019, which was valid upto midnight of 9th September, 2019 giving the details of the despatch from SRMB Srijan Private Limited to Shubham Steels, the writ petitioner having its registered office in Kolkata.
It is further submitted that he writ petitioner had raised a tax invoice in favour of Om Dayal Educational and Research Society, which had its registered office at Kolkata but the goods had to be delivered as per the instruction of the purchaser at Delhi The learned counsel appearing for the respondent / writ petitioner submitted that the bona fides of the writ petitioner has to be considered and this was taken note of by the learned writ Court and relief was granted. In order to show the bona fides of the writ petitioner, the learned counsel had referred to the documents, which formed part of the records of the writ Court, more particularly, the tax invoice raised by M/s. Bhaskar Steel and Ferro Alloy Private Limited dated 7th September, 2019, e-way bill dated 7th September, 2019, which was valid upto midnight of 9th September, 2019 giving the details of the despatch from SRMB Srijan Private Limited to Shubham Steels, the writ petitioner having its registered office in Kolkata. It is further submitted that he writ petitioner had raised a tax invoice in favour of Om Dayal Educational and Research Society, which had its registered office at Kolkata but the goods had to be delivered as per the instruction of the purchaser at Delhi
the learned writ court
COURT HELD
Considering the facts as recorded, held that court made it clear that they have examined the facts of the case on hand, the bona fides of the respondent / writ petitioner and then arrived at a conclusion that it is not a case of willful attempt to evade payment of tax and therefore, the decision having been rendered on the peculiar facts cannot be treated as a precedent.
Thus, we are of the view that the relief granted by the learned writ Court is fully justified.
In the result, the appeal and the application filed by the department are dismissed and the appellant is directed to process the application for refund filed by the respondent on 7th March, 2022
the learned writ court
ANALYSIS OF JUDGEMENT
Court need not go into the controversy as to whether there was a break down 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 7th September, 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 willful 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.
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