Facts of the Case

Shaikh Aslam Ali (also known as Sk Ali Aslam) challenged an order dated November 16, 2022 passed under Section 74 of the WBGST/CGST Act, 2017. Though appealable under Section 107, the petitioner could not approach the appellate authority in time because he was seriously indisposed and under dire financial straits, unable to arrange the mandatory pre-deposit. A coordinate bench of the same High Court had, in the petitioner's own connected matter (WPA 25558 of 2024, concerning another order of the same date), already laid down a formula for granting a similar belated-appeal opportunity, conditioned on payment of costs.

Issues Involved

  1. Whether a writ petition against a Section 74 order, filed belatedly due to the petitioner's illness and financial hardship in arranging the pre-deposit, should be entertained or the petitioner instead directed to the appellate remedy on terms.
  2. How the mandatory 10% pre-deposit requirement should be treated where a larger amount has already been recovered coercively from the petitioner.

Petitioner's Arguments

  • Was seriously indisposed and in dire financial straits, preventing timely arrangement of the pre-deposit needed to appeal; the GST Appellate Tribunal itself is yet to be constituted.
  • His own connected case (WPA 25558/2024) had already been disposed of on similar facts with a workable formula permitting appeal on cost payment.

Respondent's Arguments

  • Did not dispute that a sum in excess of 10% of the tax in dispute had already been recovered from the petitioner by the GST authorities.

Court Order / Findings

  • Following its own coordinate ruling in the petitioner's connected matter, the Court held the petitioner should not be rendered remediless merely because the appellate tribunal is yet to be constituted, and permitted the petitioner to file an appeal within four weeks.
  • On filing, the appellate authority was directed to ascertain whether more than 10% of the disputed tax had already been recovered — if so, the appeal must be heard on merits without insisting on any further pre-deposit; if not, a fresh pre-deposit equivalent to 10% of the disputed tax must first be accepted.
  • Since the petitioner approached the Court belatedly, he was directed to pay costs of Rs.50,000 to the High Court Legal Services Committee, upon which he would be entitled to seek release of the attachment order from the appellate authority (subject to the 10% condition being satisfied).

Important Clarification

  • Where the GST department has already coercively recovered more than the statutory 10% pre-deposit from a taxpayer before an appeal could be filed, courts are directing appellate authorities to treat that recovery as satisfying Section 107's pre-deposit requirement.
  • The appeal must then be heard on merits without demanding a fresh deposit, even in a belated appeal — though such indulgence for delay typically comes conditioned on payment of costs to the Legal Services Committee.

Sections Involved

  • Section 74, CGST/WBGST Act, 2017 — determination of tax demand by reason of fraud, under which the original order was passed.
  • Section 107, CGST Act, 2017 — first appeal, including the mandatory 10% pre-deposit of the disputed tax.
  • Section 112, CGST Act, 2017 — second appeal before the GST Appellate Tribunal, referenced as not yet constituted.

Decision – In Favour of

Disposed of with directions, in favour of the petitioner (assessee) — a fresh window to appeal was granted with the pre-deposit requirement treated as satisfied by the amount already recovered, conditional on payment of costs.

Case Details

Court: High Court at Calcutta
Case No.: WPA 25551 of 2024
Coram: Hon'ble Justice Om Narayan Rai
Date of Order: 15.12.2025

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