At, High Court of Judicature at Calcutta
By, THE HONOURABLE MR. JUSTICE SANJIB BANERJEE
For the Petitioner: Sumit Kumar Chakraborty, Piyal Gupta, Sanchita Dey, Payal Verma, Advocates. For the Respondents: Abhratosh Majumder, Prithu Dudhoria, S. Mukherjee, Advocates.
The problem faced by the petitioning assessee is on account of the West Bengal Taxation Tribunal not functioning at the moment.
The petitioner challenged an order of assessment by way of an appeal.
However, by the time that the appeal was lodged, Section 84 of the West Bengal Value Added Tax Act, 2003 stood amended and an appeal had to be filed with the statutory pre-deposit of 15% of the tax in dispute which was not done in the petitioner’s case. As a consequence, the appeal was not entertained. The Sales Tax authorities proceeded to try and realise the tax due. Garnishee proceedings were instituted and it is the admitted position that a sum of about Rs.45 lakh due from third parties to the petitioning assessee has been realised by the Sales Tax authorities on account of the perceived dues of the petitioning assessee.
Since Section 84 of the said Act read with Rule 138 of the West Bengal Value Added Tax Rules, 2005 permits an appeal to be entertained upon 15% of the tax in dispute to be put in as a pre-deposit, the realisation of an amount in excess of 15% of the tax in dispute by the Sales Tax authorities entitles the petitioner to maintain an appeal from the order of assessment without making any further pre-deposit. Accordingly, the order of the appellate forum by which the appeal was not entertained, dated January 18, 2016 is set aside and the appeal is restored on the board of the appellate forum to now be dealt with in accordance with law.
Since an amount in excess of 35% of the tax in dispute has been realised by the department in course of the garnishee proceedings, the department is restrained from realising any further money on account of the tax in dispute from the petitioning assessee or any agency or associate of the petitioning assessee in any manner whatsoever without the previous leave of the appellate forum. The petitioning assessee will now be entitled to operate its bank accounts without the fetters imposed by the Sales Tax authorities. It will also be open to the petitioning assessee to claim refund of the amount in excess already realised by the department, if and to the extent that the appeal succeeds. If any refund is payable to the petitioner upon the appeal succeeding, the refund will carry interest at the statutory rate from the date of rea
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lisation thereof till the date of payment. It is hoped that the appellate forum will dispose of the appeal as expeditiously as the business of that forum would permit. W.P. 2279 (W) of 2016 is disposed of without any order as to costs.