HIGH COURT AT CALCUTTA In the Circuit Bench At Jalpaiguri CONSTITUTIONAL WRIT JURISDICTION Present:

THE HON’BLE JUSTICE AJAY KUMAR GUPTA WPA 2459 of 2023 Bimal Roy Versus The State of West Bengal & Ors.

For the Petitioner : Mr. Himangshu Kumar Ray, Mr. Abhilash Mittal, Mr. Prosenjit Das, ...Advocates For the State : Mr. Pretom Das ...Advocate Heard on : 17.10.2023 Judgment on : 19.10.2023 AJAY KUMAR GUPTA, J.:

1. The instant writ petition has been filed by the petitioner under Article 226 of the Constitution of India praying for order or direction on the respondent nos. 1, 4, 5, 6, 7, 8, 9, 10,, 11 and 12 to pay the liability of GST incurred on works contract executed and completed after 1st July, 2017 wherein the contracts were awarded in the pre-GST regime or post-GST regime and therefore it was impossible on part of the petitioner as well as the respondent nos. 4, 5, 6, 7, 8, 9, 10, 11 and 12 to include the component of GST in the value of contract awarded prior to GST legislation coming into force or post-GST contracts, ongoing projects and the petitioner is also challenging the impugned summary of show cause notice dated 22.09.2023 under Section 74 of the Central Goods and Services Tax Act, 2017 and of the West Bengal Goods and Services Tax Act, 2017 (hereinafter referred to as “GST Act”) for the period 2017-2018 & 2018-2019 and subsequent notices of the GST Act, issued by the respondent no. 3.

2. It is the contention of the petitioner that the petitioner carries on business under the name and style Bimal Roy as proprietorship business thereof dealing with business of Works Contractor.

3. It is further contended by the petitioner that during the period 2017- 2018 petitioner received several work orders from the Government contractee during the pre-GST and post-GST regime to do several constructions and the process of estimating and tendering was started in pre-GST regime and work order issued and work started by the petitioner in pre-GST regime and continue it also in post-GST regime. On 10.04.2018, 03.05.2018 and other dates the petitioner received payment certificate issued by the Government concerned without payment of GST tax as per the notification and statute.

4. It is further submitted that on 18.02.2021, the petitioner voluntary paid tax CGST Rs. 22, 80,751/- and SGST Rs. 22, 80,751/- and total Rs. 45,61,502/- vide FORM GST DRC-03. On 14.07.2023, the respondent no. 3 issued notice under Rule 56(18) of the GST Rules with attachment to the petitioner and directed to submit some documents. Thereaftr on 28.07.2023, the respondent no. 3 issued reminder letter with in connection to notice dated 14.07.2023 to the petitioner and directed to submit reply with relevant documents. Again on 19.08.2023, the respondent no. 3 issued reminder letter in connection to notice dated 14.07.2023 to the petitioner and directed to submit reply with relevant documents.

5. After receiving such show cause notice and reminders, petitioners immediately submitted letters to the Government contractee on 27.08.2023 and 28.08.2023 requesting to pay the petitioners GST tax with interest as applicable under the GST Act. As the GST is an indirect tax which is to be collected by the supplier from the recipient and paid to the concerned authorities. Petitioners are entitled to receive GST Tax as applicable on the works contract services executed by the petitioner during the GST regime from Government Contractee.

6. It is further submitted that on 29.08.2023 the respondent no. 3 issued notice in Form GST DRC-01A under Section 74(5) of the GST Act along with annexure for the F.Y. 2017-2018 & 2018-2019 to the petitioner stating that there is suppression of taxable turnover in comparison to GSTR3B with Income Tax Form 26AS u/s 192C i.e. payments to contractors 7 Sub-contractors & Fees for professional or Technical Services u/s 194J, leading to non-payment /evasion of GST during the F.Y. 2017-2018 & F.Y.

2018-2019.

7. It is further submitted that on 22.09.2023, th