The court emphasized the obligation of the authority to consider the application for extension and the finding that an appeal is no substitute for revisiting an ex parte order, especially when the defense of the petitioner is not on record.

JUDGMENT :

Raja Basu Chowdhury, J:

1. Considering the nature of urgency involved, the present writ petition is taken up for consideration.

2. The present writ petition has been filed, inter alia, challenging the order dated 20th December, 2023, issued under Section 73(9) of the West Bengal Goods and Services Tax Act, 2017 read with CGST Act, 2017 (hereinafter referred to as the “GST Act”).

3. The petitioner contends that the petitioner was served with a show-cause notice on 22nd September, 2023. By placing reliance on the said notice, it is submitted that although, the petitioner was given an opportunity to submit its response in terms of the provisions contained in Section 73 of the GST Act by 25th October, 2023 yet the date for personal hearing was fixed on 10th October, 2023.

4. According to the petitioner, by reasons of Durga Puja, the petitioner could not appropriately prepare its response and further since, the office of the respondents were closed between 16th October, 2023 and 29th October, 2023, the petitioner had applied for extension immediately on the reopening of the office of the respondent no.1 on 30th October, 2023 by a notice in writing of even date. The same was followed up by a response in the GST portal dated 6th November, 2023 wherein the factum of seeking extension for giving its reply was also recorded. The petitioner further claims that the petitioner had closed down its business and surrendered its GSTIN in the year 2020. As such, it was difficult to give its response within a short time.

5. By drawing attention of this Court to the printout copy of the petitioner’s response/extension application on the GST portal dated 6th November, 2023, it is submitted that the petitioner had also sought for personal hearing. According to the petitioner, the respondent no.1 by ignoring the petitioner’s request had passed the order dated 20th December, 2023 purportedly under Section 73(9) of the GST Act. The aforesaid order, according to the petitioner has been passed contrary to the provisions of the GST Act.

6. By referring to the provisions of GST Act, in particular Section 75(5), it is submitted that the same incorporates the power to grant upto three (3) extensions. The petitioner had only sought for one extension. Although, the proviso to sub-section (5) of Section 75 of the GST Act authorizes the respondent no.1 to grant upto three extensions, in the petitioner’s case, the respondent no.1 without formally rejecting the petitioner’s application for extension, had passed the order dated 20th December, 2023. According to the petitioner, the aforesaid order cannot be sustained as the same has been passed without giving appropriate opportunity to the petitioner to respond to the show cause. He submits that although, there is an appellate provision, an appeal is no substitute for the order to be passed on consideration of the petitioner’s response, which in this case has been denied.

7. Mr. Siddiqui, learned advocate representing the respondents on the other hand, submits that despite the fact that the petitioner was given ample opportunity to respond to the show-cause, the petitioner did not avail of such opportunity. The show-cause notice was itself issued on 22nd September, 2023 and as such on the petitioner’s own showing the petitioner had time at least till 15th October, 2023 to give its response, even if the period for Puja Vacation is discounted. In any event, it is submitted that the petitioner was required to give its response on the online portal and, as such, the same had nothing to do with the closure of the office of respondent no.1 on account of Puja Vacation. It is submitted that the petitioner has an alternative remedy in the form of an appeal. The time to prefer the appeal has not yet expired. As such, this Hon’ble Court ought not to entertain the present writ petition.

8. Heard the learned advocates appearing for the respective parties and considered the materials on record. Admittedly, in this case it is n