Facts of the Case

The petitioner, Abhijit Roy, filed a writ petition before the Calcutta High Court challenging the intimation dated 11 February 2022 issued under Section 74(5) of the West Bengal Goods and Services Tax (WBGST) Act. The petitioner also challenged the action of the GST authorities in recovering the penalty amount by debiting the petitioner's Electronic Credit Ledger. During the proceedings, the State informed the Court that a final adjudication order had already been passed on 29 March 2022, and the order was available on the official GST portal.

 Issues Involved

  1. Whether the writ petition was maintainable after the passing of the final adjudication order.
  2. Whether the petitioner should be directed to avail the statutory appellate remedy instead of invoking writ jurisdiction.
  3. Whether the petitioner could seek refund of any excess amount recovered beyond the statutory pre-deposit required for filing an appeal.

 Petitioner's Arguments

  • The petitioner challenged the intimation issued under Section 74(5) of the WBGST Act.
  • The petitioner also challenged the action of the GST authorities in realizing the penalty amount from the Electronic Credit Ledger.
  • The petitioner sought intervention of the High Court against the impugned proceedings and recovery action.

 Respondent's Argument

  • The State GST authorities submitted that the final adjudication order had already been passed on 29 March 2022.
  • It was contended that the adjudication order was available on the official GST portal.
  • Since a statutory appeal was available under the GST law, the petitioner should avail the alternative remedy instead of pursuing the writ petition.
  • Accordingly, the State argued that the High Court should not interfere in the matter under its writ jurisdiction.

 Court Order / Findings

The Calcutta High Court disposed of the writ petition by granting liberty to the petitioner to file the statutory appeal against the adjudication order, subject to compliance with the prescribed statutory formalities within two weeks.

The Court further directed that:

  • If the appeal is filed within the stipulated period, the appellate authority shall not reject the appeal on the ground of limitation.
  • The appellate authority shall consider the appeal on its merits.
  • The petitioner shall also be entitled to claim refund of any excess amount recovered beyond the statutory pre-deposit required for filing the appeal, in accordance with law.

Accordingly, the writ petition was disposed of with the above observations and directions.

 Important Clarification

  • A writ petition may not ordinarily be entertained where a final adjudication order has already been passed and an effective statutory appellate remedy is available.
  • The High Court may, however, protect the taxpayer by granting liberty to file the appeal and directing that limitation should not be raised if the appeal is filed within the period specified by the Court.
  • The judgment also recognizes the taxpayer's right to seek refund of any amount recovered in excess of the mandatory statutory pre-deposit while pursuing the appellate remedy.

 Section Involved

  • Section 74(5) of the West Bengal Goods and Services Tax (WBGST) Act

Link to Download the Order

https://www.mytaxexpert.co.in/uploads/1785318545_2203compressed.pdf

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