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TMI Blog2024 (3) TMI 391X X X X Extracts X X X X X X X X Extracts X X X X ..... before the respondents seeking for an adjournment on the ground noted therein, on 11th October, 2023 within the due date to respond, the proper officer had purportedly rejected the same on the consideration that more than six adjournments had been granted. In this context, it may be relevant to consider the general provisions as regards grant of an opportunity to respond, to a show cause notice issued under section 73(1) of the said Act. Once, the petitioner had sought for an extension, the respondent no. 1 was obliged to consider the application for extension and ought not to have passed the final order holding that more than six adjournments had been granted to the petitioner. There is no finding on the part of the respondent no. 1 that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pective parties and having considered the materials on record, I am of the view that the petitioner should be permitted to implead the Assistant Commissioner of State Tax, NS Road, and MR Charge, Office of Senior Joint Commissioner, N.S. Road, 6th Floor, Annex Building-II, 14 Beliaghata Road, Kolkata 700015 as respondent no. 2. 2. Mr. Chakraborty learned advocate, who is present in Court enters appearance on behalf of the respondent no. 2. 3. The Department is directed to carry out the aforesaid amendment. 4. CAN 1 of 2024 is accordingly disposed of. IN Re: WPA 3092 of 2024 and IA CAN 2 of 2024 5. Considering the nature of urgency involved the writ petition is taken up for consideration. 6. The present petition has been filed, inter alia, c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e time, had purported to pass the final order dated 6th November, 2023, thereby determining liability under Section 73(9) of the said Act. 8. Mr. Sharaff, learned Advocate, representing the petitioner by drawing attention of this Court to the provisions of Sections 61, 66 and 73 of the said Act submits that each of the aforesaid sections provides for different procedures. By placing reliance on Section 75(4) of the said Act, it is submitted that whenever the proper officer under the said Act proposes to pass an adverse decision or whenever an adverse decision is contemplated as in this case under Section 73 and its Sub-Sections, or a request is made seeking opportunity to respond, no such decision can be taken without affording such person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 was issued, the show cause notice dated 12th September, 2023 did not even see the light of the day. He submits that the said order cannot be sustained the same stands vitiated on the ground of violation of principles of natural justice. He submits that the respondents had proceeded further on the basis of the aforesaid order and had since, by a recovery notice dated 15th February, 2024 sought implementation of the aforesaid order notwithstanding the primary challenge to the aforesaid order remains pending. It is stated that until and unless this Court interferes with the order dated 6th November, 2023 passed by the respondent no. 1, and quashes the demand dated 15th February, 2024 the petitioner shall suffer irreparable loss and injury. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same was followed up by a further notice of intimation under Section 73(5) of the said Act. None of the aforesaid notices are, however, a notice to show cause under section 73(1) of the said Act. As correctly pointed out by the learned Advocate for the petitioner that the statute provides for an opportunity to respond when the department contemplates passing of any adverse decision under Section 73(9) of the said Act. Admittedly, in this case the show cause notice under Section 73(1) of the said Act had been issued on 12th September, 2023. Although, the petitioner had duly applied before the respondents seeking for an adjournment on the ground noted therein, on 11th October, 2023 within the due date to respond, the proper officer had purp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itiated vide notice dated 16th May 2023, cannot be clubbed together for the purpose of holding that the petitioner was afforded with ample opportunity to respond to the show cause issued under section 73(1) of the said Act. 13. Admittedly, the provisions of Section 73 and its sub sections are independent provisions. Having regard to the aforesaid, the manner in which the respondent no. 1 had proceeded to pass the final order without granting extension to the petitioner to file its response or to be offered personal hearing, despite the petitioner showing sufficient cause, appears to be a colourable exercise of power by the said authority. 14. Although, it has been argued by the respondents that the petitioner has an alternative remedy in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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