Calcutta High Court
Randhir Singh Bhutoria & Anr vs Union Of India & Ors on 11 December, 2017
Equivalent citations: AIRONLINE 2018 CAL 731
Author: I. P. Mukerji
Bench: I. P. Mukerji, Md. Mumtaz Khan
OD-1
ORDER SHEET
GA No.2241 of 2016
With
APO No.223 of 2016
WP No.452 of 2016
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
RANDHIR SINGH BHUTORIA & ANR.
Versus
UNION OF INDIA & ORS.
BEFORE:
The Hon'ble JUSTICE I. P. MUKERJI
The Hon'ble JUSTICE MD. MUMTAZ KHAN Date : 11th December, 2017.
Appearance:
Mr. Ananda Sen, Adv.
Mr. C.K. Saha, Adv.
Mr. Sabyasachi Mondal, Adv.
Mr. Prabir Kr. Chowdhury, Adv.
Ms. Aishwarya Rajyashree, Adv.
The Court: By an order in original dated 22nd February, 2016 the Service Tax Authorities imposed, inter alia, tax, interest and penalty on the appellants/writ petitioners. The exact details of this order were not known to them when they preferred the writ application (WP No.1087 of 2015).
Mr. Ananda Sen, learned Advocate for the appellants/petitioners submits that even without service of the departmental order dated 22nd February, 2016, they preferred the said writ application, praying before the Court to deposit the tax.
On 26th February, 2016 this writ application was disposed of by condoning the delay and allowing the appellants/writ petitioners to deposit the tax. This was duly done by the Appellants/petitioners.2
Mr. Sen tell us that on 22nd March, 2016 his clients were served with the order dated 22nd February, 2016. It is then they discovered that in addition to tax, penalty had also been imposed.
They challenged, inter alia, the imposition of penalty by filing the present writ application (WP No.452 of 2016), contending that since the delay in payment of tax had been condoned, it necessarily meant that penalty could not be demanded of the petitioners.
The Hon'ble First Court on 8th June, 2016 took a very technical view, in our opinion, of the matter. Although there was a specific pleading in the writ petition that the order-in-original of the department had been served on his clients on 18th March, 2016, it was of the view that since the order was of 22nd February, 2016, it was open to the appellants/ petitioners to have challenged it in the first writ.
The writ application was disposed of on 8th June, 2016 giving liberty to the appellants/petitioners to challenge the imposition of penalty in a separate appropriate proceeding.
First of all, as we have said before, the order of penalty was served on 22nd March, 2016 much after the order of this Court in the first writ dated 26th February, 2016. There was no basis to think that the Appellants/petitioners had knowledge of the imposition of penalty before the date of service of the order. In any event, the appellants/petitioners were not obliged to challenge this order before the date of its service.
Secondly, the appeal to the Court to waive penalty on the ground that it had condoned the delay in payment of the service tax could itself seen as a separate cause of action justifying filing of the instant writ. This is so because in the first writ, as submitted by the learned Advocate, the prayer was made only to deposit the service tax due by condoning the delay.
Thirdly, when the rightness or wrongness of imposition of penalty was challenged before the Court it was not proper to throw out the appellants/ petitioners from the Court and ask them to pursue their remedy in an unidentified forum.3
It was within the domain of the Court to have decided the question. In those circumstances this is a fit case in which the matter be remanded to the Court below for de novo adjudication on merits, keeping all questions open except the question of maintainability, which we have decided in this appeal.
The order dated 8th June, 2016 is set aside.
By consent of the parties, the appeal and the stay application are disposed of without insisting on any other formalities. All undertakings are discharged.
(I. P. MUKERJI, J.) (MD. MUMTAZ KHAN, J.) cs/