Binoy Kolay Vs Senior Joint Commissioner, State Tax… — GST and Indirect Tax | Calcutta HC (2025)

Binoy Kolay Vs Senior Joint Commissioner, State Tax… — GST and Indirect Tax | Calcutta HC (2025)

What the court decided

AI extract

Outcome

Second adjudication order dated 30.03.2023 for period 2017-2018 quashed; appellate authority's order dated 27.09.2024 set aside; delay in preferring the appeal condoned; appellate authority directed to hear and dispose of the appeal on merit with opportunity of hearing to the petitioner within twelve weeks of communication of this order; no order as to costs.

Issue for consideration

Whether the second adjudication order (erroneously duplicated GST DRC-07 demand) for the period 2017-2018 dated 30.03.2023 should be quashed. +1 more

Court's answer

The second adjudication order passed on 30 March 2023 for period 2017-2018 was passed inadvertently by the concerned authorities, and this Court quashes that adjudication order dated 30.03.2023.

Ratio / Principle

The appellate authority failed to exercise the jurisdiction vested in it by ignoring the observations of the Hon'ble Division Bench of this Court in S. K. Chakraborty & Sons v. Union of India & Ors. (2023 SCC Online Cal 4759) when it dealt with the appeal.

Key takeaways

Taking note of the explanation given by the petitioner, the order of the appellate authority dated 27 September 2024 is set aside and the delay in preferring the appeal is condoned.ratio¶22
The appellate authority is directed to hear and dispose of the appeal on merit, giving the petitioner an opportunity of hearing, within twelve weeks from the date of communication of this order.ratio¶24

Detailed headnote1 paragraphs

Writ Petition (WPA 26740 of 2024, decided 07.02.2025) by Binoy Kolay against the Senior Joint Commissioner, State Tax, Bally Circle. Following a Section 73 WBGST Act, 2017 adjudication for FY 2017-2018 (Memo No.181/BY dated 29.03.2023), two GST DRC-07 demands were created on 30.03.2023 — the second (ref. ZD190323026914D) raised by mistake. The Court held the second adjudication order dated 30.03.2023 was passed inadvertently and quashed it. Finding that the appellate authority had failed to exercise its jurisdiction by ignoring the Division Bench's observations in S. K. Chakraborty & Sons v. Union of India & Ors., 2023 SCC Online Cal 4759, the Court set aside the appellate order dated 27.09.2024 which had dismissed the appeal on limitation grounds, condoned the delay, and directed the appellate authority to hear and dispose of the appeal on merit with an opportunity of hearing to the petitioner within twelve weeks. Writ petition disposed of; no costs. (Rajarshi Bharadwaj, J.)

7 07.02.2025. WPA 26740 of 2024 SM

Binoy Kolay Vs. Senior Joint Commissioner, State Tax, Bally Circle & 03 Ors.

Mr. Arya Das Mr. Amit Kumar Shaw

… for the petitioner Mr. A. Roy Md. T. M. Siddiqui Mr. T. Chakraborty

Mr. S. Sanyal

… for the state

Report filed by the respondent authorities is kept with the record.

Learned Counsel appearing for the petitioner submits that the petitioner was served with an order for the period 2017-2018 on 30^th of March, 2023 against which an appeal was preferred by the petitioner and the appellate authority rejected the appeal on the ground of limitation. In the meantime, a second adjudication order was passed by the authorities for the self same period.

Learned Counsel prays for quashing of the second adjudication order which has been passed for the period 2017-2018 and to give a direction upon the appellate authority to consider the appeal on

2

merit instead of dismissing it on the ground of delay. Learned Counsel appearing for the respondent authorities relying on paragraph 5 to 8 of the report in the form of an affidavit submits:

“5. That a report under Section 73 of the WBGST Act, 2017 in form GST DRC-07 vide reference no.AD 190323026969Y date: 30.03.2023 in respect of short payment of tax, excess availed ITC under CGST/SGST Act, 2017 was passed by my predecessor, the Senior Joint Commissioner of Revenue, Bally Circle vide Memo No.181/BY) dated 29.03.2023.

That a demand was created in the portal in form GST DRC-07 vide reference no.AD 190323026969Y Date: 30.03.2023 (See Rule 142(5)) with an advice to pay tax of Rs.3,59,074.26/-, interest of Rs.573,379/-, and penalty of Rs.35,548/-. Total payable amount stands at Rs.9,68,001.26/-. 7. That a separate demand in form GST DRC07 was also created in the portal with reference no. ZD190323026914D dated 30.03.2023 by mistake, showing tax payable, interest & penalty of Rs.3,59,074,26/-, Rs.7,28,421.00/& Rs.35,908.00/respectively totaling of Rs.11,23,403.00/-.

I tender unconditional apology for issuing

3

inadvertently 2(two) demands in respect of one adjudicating order passed by the concerned proper officer. Thus, in the said circumstances, this Hon’ble Court may be pleased to allow remittance of the amount of Rs.10,96,403/- which was recovered from the writ petitioner subsequent to the filing of his appeal.”

Heard learned counsels for the parties.

On perusal of the report it is clearly seen that the second adjudication order passed on 30^th of March, 2023 has been inadvertently passed by the concerned authorities and this Court quashes the concerned adjudication order dated 30^th of March, 2023.

On perusal of the order of the appellate authority dated 27.09.2024 it is seen that the appellate authority has failed to exercise jurisdiction vested in it and thereby ignoring the observations made by the Hon’ble Division Bench of this Court in the case of S. K. Chakraborty & Sons v. Union of

India & Ors., reported in 2023 SCC Online Cal

4759 .

Having regard to the above and taking note of the explanation given by the petitioner, while setting aside the order dated 27^th September, 2024, I condone the delay in preferring the appeal.

4

Accordingly, I direct the appellate authority to hear and dispose of the appeal, on merit, upon giving an opportunity of hearing to the petitioner, within a period of twelve weeks from the date of communication of this order.

With the above observations and directions, the writ petition is disposed of.

There shall be no order as to costs.

All parties shall act in terms of the copy of the order downloaded from the official website of this Court.

(Rajarshi Bharadwaj, J.)