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2025 DIGILAW 468 (CAL)

Jyoti Ghosh v. Tax Recovery Officer, Siliguri

2025-08-19

PARTHA SARATHI CHATTERJEE

body2025
JUDGMENT : PARTHA SARATHI CHATTERJEE, J. The present writ petition has been filed challenging the legality and validity of the warning notice dated 31st May, 2025, issued by the Tax Recovery Officer, Siliguri, and the Joint Commissioner of Revenue in connection with Certificate Case No. TRO/05/2017-18/89/00281. The petitioner further seeks the issuance of a writ of certiorari for quashing the said notice dated 31st May, 2025, as well as the assessment order dated 30th June, 2011. In addition, the petitioner prays for a direction upon the concerned respondents to refund the amount already recovered from him pursuant to the aforesaid assessment order. 2. Mr. Lakhotia, learned Advocate appearing for the petitioner, submits that immediately upon receipt of the warning notice, the petitioner approached the office of the respondents and conveyed his ignorance about the initiation of such proceedings against him. 3. However, without disclosing any details of the said proceeding, the concerned authority exerted pressure upon the petitioner to deposit a sum of Rs. 5,59,268/-. It was subsequently discovered that a sum of Rs. 3,75,989/- had already been deducted from the petitioner’s account maintained with the State Bank of India, Siliguri Branch. Thereafter, further pressure was mounted upon the petitioner to deposit the balance amount, and being confronted with such circumstances, the petitioner was compelled to make the payment of the balance amount. 4. Mr. Lakhotia, learned Advocate for the petitioner, further submits that the respondent authority can proceed to assess value added tax only upon service of a mandatory notice in Form-25. He draws the attention of this Court to Section 46 (1) of the West Bengal Value Added Tax Act, 2003 , read with Rule 56(1)(ii) of the Rules framed thereunder, which expressly mandates that the authority may proceed to assess value added tax only after such service. In the absence of service of Form-25 upon the assessee, the authority has no jurisdiction to make any assessment. In support of his submission, reliance has been placed upon an unreported decision of a Division Bench of this Hon’ble Court in WPTT 8 of 2025 (Jharna Saha vs. Joint Commissioner of Sales Tax, Behala Charge & Ors.). 5. In the absence of service of Form-25 upon the assessee, the authority has no jurisdiction to make any assessment. In support of his submission, reliance has been placed upon an unreported decision of a Division Bench of this Hon’ble Court in WPTT 8 of 2025 (Jharna Saha vs. Joint Commissioner of Sales Tax, Behala Charge & Ors.). 5. He also submits that on several occasions, this Court afforded the respondent authority opportunities to produce documents to demonstrate that the mandatory notice in Form-25 had been duly served, and even granted liberty to produce records to establish that the assessment order in the present case had ever been served upon the petitioner. However, till date, the respondents have failed to produce any such document. 6. Today, Ms. Sarkar, learned Advocate appearing for the respondent authority, has produced a report in the form of an affidavit annexing thereto a copy of the assessment order dated 30th June, 2011. Ms. Saha, with her usual fairness, submits that no document is available with the respondent authority to establish that the mandatory notice in Form-25 or the said assessment order was ever served upon the petitioner. She further submits that, owing to the reallocation of the office of the respondent authority, such documents might have been lost or misplaced. 7. In reply, Mr. Lakhotia, relying upon a decision reported in 1992 Supp. (1) SCC 471 ( Collector of Central Excise, Madras vs. M/s. M.M. Rubber and Co., Tamil Nadu ), submits that unless an order is communicated to the person against whom it is passed, it cannot be said to have become effective. He further submits that merely passing an order and keeping it on file will not suffice; the order must be communicated to the person concerned. He contends that such an order cannot have any value in the eye of law, and since the entire proceeding is claimed to have been initiated in 2011 while the warning notice in connection therewith was served only on 23rd May, 2022, the same cannot be sustained. He also cites a decision reported in (1994) 93 STC 406 (State of A.P. vs. M. Ramaishtaiah & Co.) to contend that, in similar circumstances, where the assessment was made beyond the prescribed period of limitation, it was held to be invalid. 8. At the outset, Ms. Sarkar raises the issue of maintainability of the present writ petition. He also cites a decision reported in (1994) 93 STC 406 (State of A.P. vs. M. Ramaishtaiah & Co.) to contend that, in similar circumstances, where the assessment was made beyond the prescribed period of limitation, it was held to be invalid. 8. At the outset, Ms. Sarkar raises the issue of maintainability of the present writ petition. She submits that the writ petition is not maintainable in view of the existence of an efficacious alternative remedy. She further submits that the assessment order passed by the respondent authority is an appealable order, and since the petitioner did not avail himself of such remedy, the present writ petition cannot be entertained. 9. To counter the submissions advanced by Ms. Sarkar on the issue of maintainability, Mr. Lakhotia relies on the decision of the Hon’ble Supreme Court in Collector of Central Excise, Madras (supra) and submits that the mere existence of an alternative remedy does not create an embargo on the Writ Court in exercising its jurisdiction. 10. Heard the learned Advocates appearing for the respective parties. 11. Since the issue of maintainability has been raised, it would be prudent to decide this issue first before delving into the merits of the matter. 12. Admittedly, there is no absolute bar on a Writ Court exercising its extraordinary jurisdiction on the ground of availability of an alternative remedy. This is essentially a rule of policy, convenience, and judicial discretion rather than a rule of law or a restriction on writ jurisdiction. Whether or not the extraordinary jurisdiction under Article 226 of the Constitution of India is to be invoked depends upon the specific facts and circumstances of each case. It is a well-settled principle of law that, notwithstanding the existence of an alternative remedy, a writ petition may still be entertained, particularly where the petition involves enforcement of fundamental rights, violation of principles of natural justice, proceedings or orders wholly without jurisdiction, or a challenge to the vires of a statute. It is apposite to refer to the authoritative pronouncement in Union of India & Ors. vs. R. Reddappa & Anr., reported in (1993) 4 SCC 269 , wherein it was held that once the Court is satisfied that injustice and arbitrariness have occurred, any restriction whether self-imposed or statutory stands lifted, and no rule or technicality concerning the exercise of power can impede the rendering of justice. 13. vs. R. Reddappa & Anr., reported in (1993) 4 SCC 269 , wherein it was held that once the Court is satisfied that injustice and arbitrariness have occurred, any restriction whether self-imposed or statutory stands lifted, and no rule or technicality concerning the exercise of power can impede the rendering of justice. 13. In the present case, as noted earlier, the authority proceeded to assess value added tax for the financial year 2008-09 in 2011, yet despite having sufficient opportunity, failed to produce any document showing service of the mandatory notice in Form-25. Even when specifically asked to produce documents to establish that the assessment order was ever served at any time after 30th June, 2011, the respondent failed to do so. This is a glaring example of violation of the principles of natural justice. In view of such violation, it would not be prudent to hold that the mere existence of an alternative remedy justifies refusal to entertain this writ petition. 14. In Jharna Saha (supra), the Hon’ble Division Bench was pleased to hold that the action of the authorities in assessing value added tax without service of the mandatory notice in Form-25 vitiates the assessment order and all actions taken in connection therewith. 15. As noted earlier, the assessment order has been brought on record only today by filing a report in the form of an affidavit. Thus, it can be reiterated that the respondent has failed to produce any document to show that this order was ever served upon the petitioner. There can be no doubt in accepting the proposition of law that unless an order is communicated to the person against whom it is passed, it cannot be said to have become effective. 16. Rule 56 of the West Bengal Value Added Tax Rules, 2005 casts an obligation upon the concerned authority to serve a notice in Form-25 on a dealer, directing him to appear in person or through his authorized agent on the date and at the time specified therein, for compliance with the requirement of Section 56(5), for the purpose of assessment of tax in respect of a particular period. 17. Therefore, due to non-compliance, or failure on the part of the respondent to establish that the mandatory requirement of Rule 56 was complied with, the assessment order dated 30th June, 2011 cannot be sustained and is accordingly set aside. 17. Therefore, due to non-compliance, or failure on the part of the respondent to establish that the mandatory requirement of Rule 56 was complied with, the assessment order dated 30th June, 2011 cannot be sustained and is accordingly set aside. Consequently, the warning notice issued in connection therewith is also not legally sustainable and is, therefore, set aside. Therefore, the recovery of value added tax from the petitioner is unjustified and unlawful. 18. Accordingly, the respondents are directed to refund both the amount deducted from the petitioner’s account and the amount deposited by the petitioner, within eight weeks from the date of receipt of a copy of this order. 19. With this observation, the writ petition is disposed of, however, without any order as to costs.