Calcutta High Court (Appellete Side)
Apeejay Shipping Ltd vs The Joint Commissioner Of Commercial ... on 23 November, 2017
Author: Subrata Talukdar
Bench: Subrata Talukdar
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3 23.11.
BR W.P. 24567(W) of 2017
2017
Apeejay Shipping Ltd.
Versus
The Joint Commissioner of Commercial Taxes & Ors.
Mr. Abhijit Chatterjee,Sr. Advocate,
Mr. Somak Basu ... for the petitioner
Mr.Abhratosh Majumdar, Ld. AAG,
Mr. Soumitra Mukherjee,
Mr. Debasish Ghosh ... for the State
Party/Parties are represented in the order of their
name/names as printed above in the cause title.
Mr. Chatterjee, learned senior counsel for the
petitioner makes three fold submissions, which may be
summarised as follows :-
a) That the final assessment order issued by one
Mr. Asim Kumar Mitra, Commercial Tax Officer,
Park Street Charge (for short CTO) dated 17th
February, 2017 is in violation of the sound legal
principle laid down in AIR 1959 SC page 308 ( at
pages 30 and 31 of the writ petition) on the
ground that the CTO (supra) is not the Sales
Tax Officer who heard the parties. Mr.
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Chatterjee submits that notice of hearing was
issued and the parties heard by one Mr. S.
Bhattacharyya, Sales Tax Officer, Park Street
Charge;
b) That the order of assessment is bad in law
being in violation of Rule 57(3) of the West
Bengal Value Added Tax Rules, 2005 (for short
the 2005 Rules ). Mr. Chatterjee points out that
the proviso to Rule 57(3) specifies that the
dealer/assessee/writ petitioner be given a gist of
the proposed order containing adverse findings
leading upto the demand with an opportunity,
within the statutory time limit provided, to
rebut such adverse findings. Since Rule 57(3)
(supra) is not complied with , the final
assessment order is voidable ;
c) That in view of the foundational infirmities in
the final assessment order, the requirement of
depositing 15 per cent of the tax levied under
Section 84 of the West Bengal Value Added Tax
Act, 2003 (for short the 2003 Act) cannot be
insisted upon qua the petitioner /assessee.
By way of reply to the above noted three Issues Mr.
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Majumdar , learned senior counsel takes this Court to
an earlier adjudication dated 16th November,2016 in
W.P. No. 953 of 2016 of a Hon'ble Single Bench. The
Bench, inter alia, set aside the draft assessment order
dated 28th June, 2016 qua the petitioner on the ground
that the said draft assessment order is cryptic.
Therefore, the Bench remanded the matter to the Sales
Tax Officer to "reconsider" the petitioner's objection and
pass a reasoned order.
Therefore on Issue (b) above Mr. Majumdar
points out that the requirement of Rule 57(3) (supra) has
been already complied with by the respondents as would
be apparent from the steps taken by the parties to the draft assessment order dated 28th June, 2016. It is pointed out, with merit, that against the draft assessment order the petitioner filed his written objection which appears at page 88 of the writ petition .
Mr. Majumdar argues that the clock cannot now be set back to the point of initiating a de novo proceedings in the face of the clear direction of the Hon'ble Single Bench for reconsideration by the Sales Tax Officer of the "objection" of the petitioner to the draft 4 assessment order dated 28th June, 2016(supra). Accordingly, while resisting the prayer of the petitioner to seek de novo proceedings by applying the Doctrine of Merger at the stage of the present challenge argued by Mr. Chatterjee, Mr. Majumdar, in his usual fairness, submits that the matter may be remanded to the appropriate Sales Tax Officer to complete the proceedings from the stage of reconsideration of the objection of the petitioner to the draft assessment order.
In the backdrop of the above discussion, this Court find no reason not to remand the matter to the appropriate Sales Tax Officer for reconsideration of the assessment on merits from the stage of the petitioner's objection to the draft assessment order as elucidated above.
Issue no. (a) stands answered in favour of the petitioner.
Issue (b) in favour of the Revenue/respondents, Issue ( c ) does not require to be answered at this stage in view of the directions qua Issues ( a ) and
(b) above.
W.P. No. 24567(W) of 2017 stands disposed of 5 at this stage without inviting any affidavits and, also without admitting the allegations.
Urgent Photostat certified copy of this order, if applied for, be given to the learned advocate for the parties on usual undertakings.
( Subrata Talukdar, J. )