08.08.2025 Sl. No. 1436

ML

Ct. 05

Sayandeep

With

CAN 1 of 2025

Dinesh Infraprojects Private Limited & anr.

Vs.

The State of West Bengal & ors.

Mr. Himangshu Kumar Ray

Mr. Subhasis Podder

Mr. Shiwani Shaw Mr. Animitra Roy Mr. Anish Mandal

Mr. Gaurav Chakraborty

Mr. Piyas Chowshury …For the petitioners

Mr. Tanoy Chakraborty

Mr. Saptak Sanyal

…For the State

In Re : CAN 1 of 2025

1. The instant application has been filed by the State,

inter alia, to revise the order passed by the appellate authority, by invoking the provisions of Section 108 of the WBGST/CGST Act, 2017 (hereinafter referred

to as the “said Act”).

2. The writ petition has, however, been filed

challenging the order passed by appellate authority under Section 107 of the said Act dated 31^st March, 2023. The writ petition has been conditionally admitted by an order dated 12^th December, 2023 passed by a Co-ordinate Bench of this Court. The petitioner has complied with the condition and the impugned demand raised by the respondents has

since been stayed.

3. Mr. Chakraborty, learned advocate appearing for the State/applicant would contend that the order passed by the appellate authority is erroneous insofar as the same does not take into consideration certain material fact being the inadmissibility of ITC in accordance with Section 16(4) of the said Act which was available at the time of issuance of the order, and if such material fact was considered, the mismatch for 2020-2021 would amount to Rs. 527/- on account of IGST, Rs. 57,37,661/- on account of CGST and Rs. 5,37,087/- on account of SGST, aggregating to Rs. 1,11,09,063/-.

4. Incidentally, on a perusal of the show-cause issued under Section 73 of the said Act, it is noticed that no demand on account of IGST had ever been made. The demand on account of CGST and SGST were also below the figure noted above. Having regard thereto, there was no cause for the proper officer to include any amount of IGST and make a determination as regards the figure of CGST or SGST as noted above or for that matter for the appellate authority to pass any such order.

5. Having regard to the aforesaid and considering the scope of Section 75(7) of the said Act, in my view, the prayer seeking revision of the appellate order cannot be said to be justified.

6. It is well settled that what cannot be done directly should not be permitted to be done indirectly. The power under Section 108, in my view, does not allow the revisional authority to improve upon the show-

cause. On the guise of exercising a power of revision, the State cannot be permitted to improve upon the show-cause. The power is only limited to correcting an erroneous order passed by any subordinate officer provided the same is prejudicial to the interest of the revenue. On such ground, I am unable to accede to the prayer of the State to allow the revision. Accordingly, the application being CAN

1 of 2025 is dismissed.

(Raja Basu Chowdhury, J.)